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Surat Farms, LLC v. Brule County Board of Commissioners

Supreme Court of South Dakota

August 30, 2017

SURAT FARMS, LLC, Plaintiff and Appellant,
v.
BRULE COUNTY BOARD OF COMMISSIONERS, Defendant and Appellee,

          CONSIDERED ON BRIEFS ON APRIL 24, 2017

         APPEAL FROM THE CIRCUIT COURT OF THE FIRST JUDICIAL CIRCUIT BRULE COUNTY, SOUTH DAKOTA THE HONORABLE BRUCE V. ANDERSON Judge

          THOMAS W. CLAYTON Sioux Falls, South Dakota Attorney for plaintiff and appellant.

          DAVID J. LARSON JESSICA HEGGE of Larson Law, PC Chamberlain, South Dakota Attorneys for defendant and appellee.

          ZINTER, JUSTICE

         [¶1.] Albert Delany filed a drainage complaint with Brule County alleging that Surat Farms LLC (Surat) was partially blocking drainage of an intermittent watercourse. Delany contended that the blockage caused water to back up onto his adjacent property. The Brule County Board of Commissioners (Board) held a hearing and found that Surat impermissibly altered the watercourse. Surat appealed the Board's decision, and the circuit court, after de novo review, affirmed. Surat appeals. We affirm.

         Facts and Procedural History

         [¶2.] Delany and Surat own adjacent farmland located near the Bijou Hills in Brule County. A natural watercourse flows through both properties. It enters Delany's property from the south and continues northeast until it enters a culvert that runs underneath 352nd Avenue, which divides Delany's and Surat's land. As the water exits the culvert, it empties onto Surat's property, where it naturally continues northeast along the watercourse for some distance.

         [¶3.] In 2013, Surat hired a contractor to install drain tile under a field on its side of 352nd Avenue. The contractor installed a subsurface inlet immediately beyond the culvert's outlet. The subsurface inlet was covered by crushed rock and dirt. Surat's contractor testified that the inlet enabled water to slowly percolate into the drain system, but the inlet did not directly accept surface water.

         [¶4.] Delany claimed that in 2014, underground water began entering his basement on his property. Unsure of the source of the problem, he filed a drainage complaint against both Surat and Gary Dozark, an upstream landowner. A county drainage official inspected the properties. She observed cattails, reeds, dead brush, and trees on Delany's property that she believed might be impeding water flow into the culvert. Delany cleared the blockages but continued to experience water backup.

         [¶5.] Consequently, Delany filed a second complaint. He also hired Brosz Engineering to prepare a site map and determine elevations on the properties. Brosz found a gradual downslope as the water passed through both properties. The water entered Delany's property at an elevation of 1, 761.4 feet; it left Delany's property and entered into the culvert inlet at 1, 760.34 feet; it left the culvert's outlet at 1, 760.02 feet; and it was deposited onto Surat's property at an elevation of 1, 760 feet. Although these elevations confirmed a downslope in the natural drainage, Brosz found an approximate 15-inch rise in elevation (1761.25 feet) just beyond the culvert's outlet where the crushed rock and dirt was placed for Surat's drain system. That was the place where it is alleged that Surat's tiling project caused water to back up onto Delany's land.

         [¶6.] The Board inspected the properties and held a hearing. Counsel appeared on behalf of both parties and presented evidence.[1] In its findings of fact and conclusions of law, the Board found that Surat's project "altered the natural flow of the water" running from Delany's land to Surat's land. The Board "required [Surat] to take appropriate action to restore the natural flow of water . . . or otherwise assure [sic] the drainage of the Delany property accordingly."

         [¶7.] Surat appealed the Board's decision to the circuit court. The court conducted a de novo review of the Board's decision. The court visited the site, made observations, and considered both witness and documentary evidence. The court found that the soil elevation near the drain tile inlet was acting as a dam, backing up water onto Delany's land. The court also found that the minimal differences in elevation along the watercourse meant that even a minor backup of water could significantly impact an upstream landowner. Finally, the court found Delany credible when he testified that the backed-up water had rendered portions of his land unsuitable for calving and haying. Therefore, the court "affirmed [the Board's decision] in all respects."

         [¶8.] Surat appeals, [2] raising two issues. It first contends that the circuit court erred in finding that Surat's tiling project impermissibly altered the watercourse. Alternatively, Surat contends that if the watercourse was impermissibly altered in some respect, the ...


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