Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Rumpza v. Zubke

Supreme Court of South Dakota

August 9, 2017

ROBERT RUMPZA, NANCY RUMPZA and ZUBKE BROTHERS, LLC, Plaintiffs and Appellees,
v.
DAVID ZUBKE and MARILYN ZUBKE, Defendants and Appellants.

          CONSIDERED ON BRIEFS ON APRIL 24, 2017

         APPEAL FROM THE CIRCUIT COURT OF THE FIFTH JUDICIAL CIRCUIT DAY COUNTY, SOUTH DAKOTA THE HONORABLE JON S. FLEMMER Judge

          REED RASMUSSEN of Siegel, Barnett and Schutz, LLP Aberdeen, South Dakota Attorneys for plaintiffs and appellees.

          JACK H. HIEB ZACHARY W. PETERSON of Richardson, Wyly, Wise, Sauck & Hieb, LLP Aberdeen, South Dakota Attorneys for defendants and appellants.

          GILBERTSON, CHIEF JUSTICE.

         [¶1.] Robert and Nancy Rumpza and Zubke Brothers LLC (Brothers) sued David and Marilyn Zubke for allegedly changing the natural flow characteristics of water draining from the Zubkes' property to the Rumpzas' and Brothers' properties. After a court trial, the circuit court granted an injunction against the Zubkes and awarded damages to the Rumpzas and Brothers. The Zubkes appeal. We affirm the injunction and Brothers' damages award. We reverse the Rumpzas' damages award.

         Facts and Procedural History

         [¶2.] This case involves drainage issues between adjoining landowners in Day County. The Zubkes own the Northwest Quarter of Section 13, Township 120 North, Range 54 West. To the west of the Zubkes, the Rumpzas own the Northeast Quarter of Section 14, Township 120 North, Range 54 West. And to the west of the Rumpzas, Brothers owns the Northwest Quarter of Section 14, Township 120 North, Range 54 West. The Zubkes' and Rumpzas' properties are separated by Day County Road 1. The Rumpzas' and Brothers' properties are adjacent.

         [¶3.] The Zubkes' property is dominant, historically draining onto the Rumpzas' property in two areas. In the southwest corner of the Zubkes' property, water drains through a culvert located below Road 1 (Drainage Area 1), flowing through the Rumpzas' property and onto Brothers' property. However, the culvert sits about 15 inches higher than the lowest point in the southwest corner of the Zubkes' property. Because of the height of this culvert, water collects in the area. Another culvert permits water to drain from the northwest corner of the Zubkes' property (Drainage Area 2) into a closed-basin slough on the Rumpzas' property.

         [¶4.] In 2012 and 2013, the Zubkes modified the established flow characteristics of Drainage Areas 1 and 2 in several ways. First, they constructed a dam and used a portable pump to drain the southwest corner of their property. Next, they dug a ten-foot-deep pit near the dam and placed a pump inside. When the water level rises to a certain point, the pump engages, and the contents of the pit are pumped over the dam, through the culvert, and onto the Rumpzas' property. The Zubkes also installed two areas of drain tile: one each in the southwest and northwest corners (Tile Area 1 and Tile Area 2, respectively) of their property. Tile Area 2 causes water that would normally drain to the west through the northern culvert to instead flow south to the pit and pump. Tile Area 1 facilitates draining areas that previously had remained wet. The cumulative effect of these modifications is an increase in water flow through Drainage Area 1.

         [¶5.] The Rumpzas and Brothers commenced this suit on July 24, 2013, seeking an injunction and damages. They argued that the Zubkes' modifications had increased the amount of drainage onto their properties and extended the time that water lingers in the established watercourse. As a result, the Rumpzas and Brothers claimed they had been unable to plant and harvest crops in areas they had previously been able to farm. The Zubkes responded that they were simply compensating for an obstruction in the watercourse on the Rumpzas' property. After a court trial on December 14, 2015, the court returned judgment for the Rumpzas and Brothers. The court entered an injunction prohibiting the Zubkes from operating the pump installed in Drainage Area 1 and requiring the Zubkes to immediately remove all drain tile from Tile Area 2. The court also awarded damages to the Rumpzas and Brothers in the total amounts of $12, 465[1] and $16, 173, [2] respectively.

         [¶6.] The Zubkes appeal, raising two issues:

1. Whether the circuit court erred in granting the injunction.
2. Whether there was sufficient evidence to calculate damages.

         Standard of Review

         [¶7.] "[T]he question whether an injunction is statutorily authorized is reviewed de novo, and [a] court's subsequent decision to grant or deny [an] injunction is reviewed for an abuse of discretion." Magner v. Brinkman, 2016 S.D. 50, ¶ 19, 883 N.W.2d 74, 83. An abuse of discretion is "a choice outside the range of permissible choices[.]" MacKaben v. MacKaben, 2015 S.D. 86, ¶ 9, 871 N.W.2d 617, 622 (quoting Gartner v. Temple, 2014 S.D. 74, ¶ 7, 855 N.W.2d 846, 850). We will accept the circuit court's factual findings unless they are clearly erroneous. Id.

         Analysis and Decision

         [¶8.] 1. Whether the circuit court erred in granting the injunction.

         [¶9.] The Zubkes argue the circuit court erred in concluding the Zubkes caused damage to the Rumpzas and Brothers. The Zubkes assert the natural flow of water has been obstructed by silt in the watercourse on the Rumpzas' property. According to the Zubkes, their pump system is simply "'lifting' the water to a level that allows it to go over the high point on the Rumpzas' land and through the natural drainage way on the servient properties. It is restoring the drainage to what it would be if the unnatural obstructions were not present." The Zubkes further contend that the Rumpzas' and Brothers' damages "relate exclusively to damage to crops that were planted entirely within the natural drainage way that runs through" their properties. Finally, the Zubkes contend the "hardship to be suffered by [the Zubkes if the injunction is affirmed] is clearly disproportionate to the benefit to be gained by the servient landowners[.]"

         [¶10.] In South Dakota, "[t]he owner of a dominant estate is permitted to drain water onto a servient estate 'by means of a natural water course or established water course.'" Magner, 2016 S.D. 50, ¶ 15, 883 N.W.2d at 81 (quoting SDCL 46A-10A-20(4)). The "rules regarding rural surface water drainage have been codified in SDCL 46A-10A-20." Hendrickson v. Wagners, Inc., 1999 S.D. 74, ¶ 11, 598 N.W.2d 507, 510. That statute states, in part:

[A]ny rural land which drains onto other rural land has a right to continue such drainage if:
(1)The land receiving the drainage remains rural in character;
(2)The land being drained is used in a reasonable manner;
(3)The drainage creates no unreasonable hardship or injury to the owner of the land ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.