MARK AND MARILYN LONG, ARNIE AND SHIRLEY VAN VOORST, TIM AND SARA DOYLE, TIMOTHY AND JANE GRIFFITH AND MICHAEL and KAREN TAYLOR, Plaintiffs and Appellees,
STATE OF SOUTH DAKOTA, Defendant and Appellant.
on January 12, 2016
FROM THE CIRCUIT COURT OF THE SECOND JUDICIAL CIRCUIT LINCOLN
COUNTY, SOUTH DAKOTA THE HONORABLE PATRICIA C. RIEPEL Retired
V. MEIERHENRY CHRISTOPHER HEALY CLINT SARGENT of Meierhenry
Sargent, LLP Sioux Falls, South Dakota Attorneys for
plaintiffs and appellees.
P. THIMSEN JOEL E. ENGEL III of Woods, Fuller, Shultz &
Smith, PC Sioux Falls, South Dakota Attorneys for defendant
Landowners filed an inverse condemnation claim against the
State of South Dakota (State) and the City of Sioux Falls
(City) seeking damages and a permanent injunction due to
flooding on Landowners' properties. The circuit court
bifurcated the issue of whether a constitutional damaging of
property had occurred from the question of damages. Prior to
the court trial on liability, Landowners and the City
settled. The court granted the State's request to file a
cross-claim against the City seeking indemnification and
contribution. At the conclusion of the court trial, the court
issued a judgment for Landowners. The court dismissed the
cross-claim finding the State failed to prove that the City
was liable. The question of damages was presented to a jury.
After a four-day trial, the jury found the flood permanently
damaged Landowners' properties and awarded individual
damages to each of the Landowners. The State appeals. We
Minnehaha and Lincoln Counties are drained by a natural
watercourse referred to as the Spring Creek Tributary
Drainage Basin. In 1949, the South Dakota Department of
Transportation (DOT) built Highway 11. The Highway runs north
and south through Lincoln and Minnehaha Counties and across
the natural waterway known as Spring Creek. The State
maintains sole control over Highway 11. At the time of
construction, the DOT installed various culverts, including
two 48-inch culverts and one 24-inch culvert, to permit the
Spring Creek Tributary, which flows in a southeastern
direction, to flow under Highway 11 into Spring Creek.
All of the Landowners' properties are located on the west
side of Highway 11, north of the intersection of Highway 11
and 85th Street, in an area referred to as the Village of
Shindler or Elmen Acres. The homes lie in a sub-basin within
the Spring Creek Tributary Basin. They are separated from the
greater basin by the natural lay of the land and a ditch
block (driveway) south of the twin 48-inch culverts. The
single 24-inch culvert drains surface water from the
sub-basin. The 24-inch culvert is too small to drain water
entering the sub-basin from outside sources.
In 2009, the DOT began planning a project to resurface a
portion of Highway 11 near Landowners' properties. Due to
area residents' complaints that the culverts were
inadequate to effectively drain the Spring Creek Tributary,
State engineers conducted a study of the twin 48-inch
culverts. The engineers released their findings in the fall
of 2009 in a Hydraulic Data Sheet. In making their
determinations regarding the capacity of the culverts, the
engineers utilized data contained within the 2008 Federal
Emergency Management Agency (FEMA) Report Flood Plain Map.
The FEMA Report included run-off data from the City. Based on
their calculations, the engineers concluded that when water
reached the flow rate of 275 cubic feet per second (cfs) or
greater, water would pond behind the culverts to such an
extent that it would pour over the ditch block to the south
and into the sub-basin.
The engineers determined that statistically a flow of 275 cfs
would occur in an eight-year-rain event. In other words, it
was likely to occur once every eight years with a 12.5%
chance of occurrence in any given year. The Hydraulic Data
Sheet provided that a 100-year-rain event would involve water
flowing towards the culverts at 803 cfs. A 100-year-rain
event would have a 1% likelihood of occurring each year. The
hydraulic standard is to keep the 100-year-flood elevation
below the top of Highway 11. The Hydraulic Data Sheet
concluded that if water flowed over the ditch block, it would
flood into the sub-basin containing Landowners'
properties. Once water entered the sub-basin, it could drain
only through the 24-inch culvert designed to handle a flow of
Upon completion of the study, the State proceeded in 2010
with its resurfacing project on a portion of Highway 11 near
Landowners' properties. During the resurfacing, leaking
joints in the two original 48-inch culverts were repaired.
The original culverts were then reset in the same general
location, but slightly lower. No other alterations were made.
On July 29 and 30, 2010, just a few months after the
project's completion, a significant amount of rain fell
in the Spring Creek Tributary Basin causing flooding, which
damaged Landowners' real and personal properties. An
official rainfall measurement for the basin is unavailable.
The National Weather Service (NWS) at the Sioux Falls
airport, however, measured a total of 0.72 inches received on
July 29. On July 30, a total of 2.23 inches of rain fell,
which is considered a ten-year-rain event. The heaviest
rainfall occurred during the early morning of July 30, when
1.9 inches fell over a two-hour period, which is considered a
five-year-rain event. Prior to these events, Landowners had
not experienced surface flooding.
In November 2010, Landowners filed a complaint and later an
amended complaint for damages and a permanent injunction.
They asserted claims of negligence, trespass, and inverse
condemnation against the State and the City. The State
responded by filing an answer and a motion to dismiss. The
State also filed a motion for summary judgment arguing the
doctrine of sovereign immunity barred the Landowners'
claims. The State alleged it was immune because
Landowners' claims arose out of the design and
engineering of a South Dakota public roadway. The circuit
court denied both of the State's motions.
Prior to trial and upon consideration of this Court's
decision in Rupert v. City of Rapid City, Landowners
filed a second amended complaint dismissing their tort claims
of negligence and trespass. 2013 S.D. 13, 827 N.W.2d 55.
Instead, Landowners elected to proceed only on their inverse
condemnation claim directly under Article VI, § 13 of
the South Dakota Constitution for damage to their property.
Thereafter, Landowners and the City reached a confidential
settlement. The State sought permission to bring a
cross-claim against the City seeking contribution and
indemnity based upon a determination of relative degrees of
fault. The circuit court permitted the filing of the
cross-claim over Landowners' objection.
The issue of liability was tried before the circuit court on
February 18- 20, 2014. During trial, Landowners testified and
presented expert testimony from Arthur Umland, former lead
forecaster for the NWS; Kevin Goeden, program manager for the
office of bridge design for the DOT; Jon Peters, floodplain
administrator and Geographic Information System administrator
for Lincoln County; Mark Mainelli, civil engineer; and Kevin
Goff, licensed professional engineer at Clark Engineering
& Consulting. The State presented expert testimony from
Bruce Crumb, lead highway maintenance worker for the DOT;
Chad Hanisch, professional engineer at Infrastructure Design
Group; Donald Harmon, former chief meteorologist in charge of
the NWS; and Dr. Dennis Todey, associate professor at South
Dakota State University and State Climatologist.
At the conclusion of the trial, the circuit court entered
findings of fact, conclusions of law, and a judgment of
liability; finding the State responsible for the flooding of
Landowners' properties. The court's judgment
provided, "The State acquires no estate or property
interest in the land of [Landowners]."
On the question of liability, the circuit court found that
the culverts were "of insufficient size to handle the
drainage needs of Spring Creek Tributary." And but for
the construction of Highway 11 on a berm, the "natural
drainage of the Spring Creek Tributary [B]asin . . . would
not have caused any damage to" Landowners'
properties. Specifically, the court found that the two
48-inch culverts were equipped to handle an eight-year-rain
event. An eight-year-rain event would cause "water [to]
back up behind the culverts to such a degree that it would
overtop the ditch block" near the culverts and crest
over Julie Drive. If Julie Drive was overtopped, water flowed
directly into the sub-basin containing Landowners'
properties. The sub-basin was drained only by a single
24-inch culvert, which the court found inadequate to drain
the closed basin caused by the construction of Highway 11.
Based upon the evidence presented, the circuit court found
that the "State knew or should have known that an
eight-year event and above would cause flooding to
[Landowners' properties] as a result of the Highway 11
blockage of the natural drainage." The court further
found that the design pushed water into the closed sub-basin
to avoid overtopping and damaging Highway 11. Based on the
available data, the State decided to pool water behind
Highway 11 to slow the flow of water to downstream locations.
At the conclusion of the court trial, the court dismissed
with prejudice the State's cross-claim for indemnity and
contribution. The court found that the State failed to prove
its claim that the urban development on the south side of
Sioux Falls caused the extra run-off and contributed to the
flood. The State failed to present any evidence quantifying
the amount of water caused by the urbanization. The court
determined that the State had "no legal or equitable
right to indemnity from the City."
A jury trial was held on Landowners' request for damages
from December 15-18, 2014. The jury determined the flood
waters caused permanent damage to the Landowners' real
and personal properties and calculated damages individually
for each of the Landowners. Final judgments were prepared and
entered in January 2015 by the circuit court.
The State appeals and we restate the issues as follows:
1. Whether Landowners' claims were barred by sovereign
2. Whether the State's construction of South Dakota
Highway 11 and accompanying culverts caused the damage to
Landowners' properties in violation of the South Dakota
Constitution, article VI, § 13.
3. Whether the State is entitled to seek contribution or
indemnification against the City due to Landowners'
settlement with the City.
4. Whether the State has a drainage easement over
Landowners' real estate.
Whether Landowners' claims were barred by sovereign
The State maintains that the circuit court should have
dismissed Landowners' Article VI, § 13 claims based
upon the doctrine of sovereign immunity. The State argues
that sovereign immunity applies because Landowners'
claims involved the design, construction, and maintenance of
public highways. The State also contends that sovereign
immunity applies because the "decisions regarding the
placement, engineering, and design of Highway 11, along with
decisions regarding . . . [the] culverts, were discretionary
acts[.]" Whether a plaintiff's claim is precluded by
sovereign immunity is a question of law reviewed de novo.
Truman v. Griese, 2009 S.D. 8, ¶ 10,
762 N.W.2d 75, 78.
In Truman, we stated that "[s]overeign immunity
is the right of public entities to be free from liability for
tort claims unless waived by legislative
enactment." Id. ¶ 9 (emphasis added).
Landowners in the present case dismissed their tort claims,
leaving only the inverse condemnation claims. Because there
were not any tort claims pending, the State cannot raise the
affirmative defense of sovereign immunity. Indeed, we held in
Rupert that Article VI, § 13 of the South
Dakota Constitution "essentially abrogates sovereign
immunity." 2013 S.D. 13, ¶ 43, 827 N.W.2d at 71.
"The abrogation of a governmental entity's sovereign
immunity in cases involving a taking or damaging of private
property is so fundamental that it is not found in statute,
but rather in our Bill of Rights in the Constitution."
Id. As we noted in Hurley v. State,
"[n]either consent to sue the state nor the creation of
a remedy by legislative enactment is necessary to obtain
relief for a violation of the [Constitution]." 82 S.D.
156, 169, 143 N.W.2d 722, 729 (1966). Accordingly, the State
is not shielded by sovereign immunity from Landowners'
inverse condemnation claims.
Citing Hannaher v. St. Paul, Minneapolis & Manitoba
Railway Co., 5 Dakota 1, 37 N.W. 717 (1888), the dissent
concludes that Landowners' inverse condemnation claim was
actually a tort for which they cannot be compensated. In
Hannaher, plaintiff filed a tort claim against the
railroad alleging that the construction of an embankment,
ditches, and culverts, necessary to construct the railroad
track, cast flood waters upon plaintiff's lands and
crops. 37 N.W. at 717-18. Notably, plaintiff did not plead a
taking. See id. The Court questioned
whether plaintiff could maintain the negligent construction
claim as pleaded, "although defendant had a right to do
what it did, and although the act complained of was done in
the usual and ordinary manner, with the usual and ordinary
care and skill[.]" Id. at 720. Ultimately, the
Court determined that when the railroad condemned
plaintiff's property to construct the track, "the
compensation made [wa]s understood to cover all the damages
naturally arising, and reasonably expected to flow, from the
proper construction and maintenance of the [railroad]."
Id. at 721.
The present case is distinguishable because there is not any
evidence in the record that Landowners, nor their
predecessors in interest, were compensated for the
condemnation of property used to construct Highway 11. The
record is completely devoid of the circumstances under which
the State acquired the land to construct Highway
Further, the State did not claim below, nor does it claim
now, that the flooding in 2010 was within the scope of the
right previously acquired by the State to construct the
highway. See infra ¶ 69. It is incumbent on the
appellant, in this case the State, to present an adequate
record on appeal. Klutman v. Sioux Falls Storm, 2009
S.D. 55, ¶ 36, 769 N.W.2d 440, 453. And the Court
"has said on countless occasions that an issue may not
be raised for the first time on appeal." Mortweet v.
Eliason, 335 N.W.2d 812, 813 (S.D. 1983).
This Court provided in Rupert that when a condemnor
validly exercises its authority, the condemnor's
"actions cannot be deemed 'tortious' or in
violation of any 'duty' that is necessary to support
a tort." 2013 S.D. 13, ¶ 44, 827 N.W.2d at 71. As a
result, we held that even though the Ruperts pleaded claims
for tort and a taking, the Ruperts' recovery was limited
to "'just compensation' pursuant to Article VI,
§ 13, of the South Dakota Constitution."
Id. Likewise in this case, the State validly
exercised its authority in constructing, reconstructing, and
maintaining Highway 11 from the time of construction through
the time of the flood. Consequently, a theory of tort could
not be supported. Landowners properly dismissed their tort
claim and their recovery was limited to just compensation.
Whether the State's construction of Highway 11 and
accompanying culverts caused the damage to Landowners'
properties in violation of the South Dakota Constitution
article VI, § 13.
The State challenges the circuit court's determination
that its actions caused water to invade Landowners'
properties. Asserting that a number of the circuit
court's findings of fact were clearly erroneous, the
State submits that the court failed to correctly analyze the
technical data presented by the State's experts. The
State also argues that numerous supervening causes unrelated
to the State's conduct led to the flood. Further, the
State contends that Landowners must prove that the State
engaged in direct and substantial action or abuse to prevail.
In addition to this causation argument, the State contends
that Landowners failed to satisfy the requirements of the
consequential damages rule as set forth in Krier v. Dell
Rapids Township, 2006 S.D. 10, 709 N.W.2d 841. Under our
holding in Krier, Landowners must establish that the
injury to their property was peculiar in nature and not of
the kind suffered by the public as a whole. 2006 S.D. 10,
¶ 26, 709 N.W.2d at 847-48.
Did the construction of Highway 11 cause water to invade
The State alleges that the duty to show both actual and
proximate causation is implicit in inverse condemnation. We
agree. However, the State further argues that
"the evidence adduced at trial did not establish that
the State's construction of Highway 11, along with
accompanying culverts, was the proximate, substantial, or
immediate cause of the flood that damaged the
[Landowners'] properties." (Emphasis added.) In
response, Landowners contend that the State's attempt to
expand the requirements of proximate cause by adding the
terms substantial and immediate is contrary to our
most recent pronouncement in Rupert. In
Rupert, we affirmed the circuit court's
determination that the landowners must establish that the
government's action was the legal cause of the invasion
which led to the damage. See 2013 S.D. 13, ¶
17, 827 N.W.2d at 63. Our jurisprudence defines proximate or
legal cause. We find no reason to depart from this definition
for cases of inverse condemnation, nor have we done so in
prior cases. Proximate cause or legal cause "is defined
as 'a cause that produces a result in a natural and
probable sequence and without which the result would not have
occurred. Such cause need not be the only cause of a result.
It may act in combination with other causes to produce a
result.'" Peterson v. Issenhuth, 2014 S.D.
1, ¶ 17, 842 N.W.2d 351, 355-56 (quoting Estate of
Gaspar v. Vogt, Brown & Merry, 2003 S.D. 126, ¶
6, 670 N.W.2d 918, 921). As we noted in Rupert,
there is "no magic formula that enables a court to
judge, in every case, whether a given government interference
with property is a taking." 2013 S.D. 13, ¶ 10, 827
N.W.2d at 61 (quoting Ark. Game & Fish Comm'n v.
United States, 568 U.S. 23, 31, 133 S.Ct. 511, 518, 184
L.Ed.2d 417 (2012)). "Instead, the viability of a
takings claim . . . depend[s] upon situation-specific factual
At trial, Landowners presented expert testimony on the issue
of causation through engineer Mark Mainelli, whom the circuit
court found to be credible. Mainelli created a model of the
drainage as it existed on July 29-30, 2010, and of the basin
before the construction of Highway 11 using a software
package commonly used by the Army Corps of Engineers for
hydraulic studies and FEMA data. Mainelli concluded that
without the Highway 11 blockage, the water would not have
gone over the ditch block south of the 48-inch culverts, down
the west ditch of Highway 11, causing damage to
Landowners' properties. Mainelli also created a strip map
showing the elevations of the driveways and culverts within
the sub- basin containing Landowners' properties.
Mainelli explained to the jury that once the water
overwhelmed the twin 48-inch culverts, it topped the ditch
block to the south and then ran over each of the subsequent
ditch blocks as they were all of slightly lower elevation.
The single 24-inch culvert in the sub-basin was inadequate to
handle this flow.
Landowners also called the State's chief bridge engineer,
Kevin Goeden, who testified about the hydraulic study
conducted prior to the resurfacing project. He indicated that
the study determined that water would overtop the ditch block
to the south of the culverts at 275 cfs, which was an
eight-year-rain event.The court found that Goeden admitted that
the "cause of the flood was water held back by the
State's improvements known as Highway 11." Based on
the testimony of these two witnesses, the court found that
blockage of the natural flow of the Spring Creek watershed by
the construction of Highway 11 was a legal cause of the
flooding and damaging of Landowners' properties. The
State's drainage plan for the watershed was insufficient
to drain the natural watercourses. The State's design
pushed water into the closed basin to avoid overtopping
Highway 11 causing Landowners' damages.
The dissent concludes that Landowners failed to establish
that their losses were foreseeable. "[F]or proximate
cause to exist, the harm suffered must be found to be a
foreseeable consequence of the act complained of."
Hamilton v. Sommers, 2014 S.D. 76, ¶ 39, 855
N.W.2d 855, 867. "This does not mean, of course, that
the precise events which occurred could, themselves, have
been foreseen as they actually occurred; only that the events
were within the scope of the foreseeable risk."
Musch v. H-D Co-op., Inc., 487 N.W.2d 623');">487 N.W.2d 623, 625 (S.D.
The dissent begins with the proposition that "Landowners
had the burden of proving their losses were foreseeable
(i.e., probable) at the time the State constructed Highway
11." Infra ¶ 63. However, the
dissent misapprehends how this Court views foreseeability as
it relates to duty and causation. Our Court has recognized
that "foreseeability for purposes of establishing a duty
is not invariably the same as the foreseeability relevant to
causation." Poelstra v. Basin Elec. Power
Co-op., 1996 S.D. 36, ¶ 18, 545 N.W.2d 823, 827.
"The latter essentially is to be viewed as of the time
when the damage was done while the former relates to the time
when the act or omission occurred." Id. Thus,
Landowners are not required to prove that their losses were
foreseeable when the State constructed Highway 11 in 1949,
i.e., when the act occurred. Rather, to determine
foreseeability as it relates to causation, we must look to
when the damage was done. The standard is whether the damage
"ought to have been foreseen in the light of the
attending circumstances." Musch, 487 N.W.2d at
The circuit court appropriately considered all of the
attending circumstances from the time the flooding occurred
back to the time the State constructed Highway 11.
Specifically, the court found that the State constructed
Highway 11 across the natural watercourse of the Spring Creek
Tributary; that the State installed two 48-inch culverts and
one 24-inch culvert to accommodate drainage of the basin;
that, during a 2010 resurfacing project of Highway 11, an
analysis of the culverts showed that flooding would occur
during an eight-year-rain event; that the culverts were of
insufficient size to handle the drainage needs of the Spring
Creek Tributary; and that, based on the foregoing "the
State knew or should have known that an eight year rain event
and above would cause flooding to [Landowners] property as a
result of the Highway 11 blockage of the natural
drainage." Although the court did not use the precise
terms of "foreseeability" or "natural and
probable sequence, " the court's findings are
sufficient to sustain a finding of foreseeability for the
purpose of proximate cause.
The State challenges these and several other findings, which
served as the basis for the circuit court's determination
of liability, as erroneous. In total, the court entered 72
findings of fact. It is well-established "that the
credibility of witnesses and weight of evidence is for the
trial court and that a reviewing court accepts that version
of the evidence, including the inferences that can be fairly
drawn therefrom, which is favorable to the trial court's
determination." In re Estate of Dokken, 2000
S.D. 9, ¶ 25, 604 N.W.2d 487, 494. We review a circuit
court's findings of fact for clear error. Schieffer
v. Schieffer, 2013 S.D. 11, ¶ 15, 826 N.W.2d 627,
633, reh'g denied (Mar. 12, 2013). Accordingly,
a finding of fact will be overturned on appeal, only if
"a complete review of the evidence leaves this Court
with a definite and firm conviction that a mistake has been
The State specifically attacks the circuit court's
findings of fact 40 and 41, in which the court discounted the
testimony of Dr. Todey. As the State Climatologist, Dr. Todey
tracks and measures precipitation in South Dakota. He also
coordinates a network of volunteers who measure precipitation
once per day and record the results online. The network is
referred to as the Community Collaborative Rain, Hail, and
Snow Network ("CoCORaHS"). Prior to trial,
Landowners filed a motion to prohibit Dr. Todey from
testifying and presenting CoCORaHS data. Landowners claimed
the data was inaccurate as it did not include the time and
amount of the precipitation necessary to determine intensity
and compute flow rates. Although the circuit court permitted
Dr. Todey's testimony, the court ultimately rejected it.
Instead, the court found credible the rainfall data of
Landowners' expert Art Umland, a former meteorologist for
the NWS for 30 years. In forming his opinions, Umland relied
on hourly measurements taken at the NWS station in Sioux
Falls along with other statistical data. Umland determined
that the total rainfall on July 30 was 2.23 inches, which was
a ten-year-rain event. Of that total, 1.9 inches fell in a
two-hour time frame, which Umland classified as a
five-year-rain event. The court weighed the credibility of
the expert witnesses and the reliability of their findings.
This is uniquely the function of the circuit court. From our
review of the record we are not persuaded that the circuit
court's credibility determinations or findings on
causation were clearly erroneous.
The State, citing Smith v. Charles Mix County, next
argues that intentional government conduct is necessary to
prove the element of causation. 85 S.D. 343, 182 N.W.2d 223');">182 N.W.2d 223.
In Smith, we affirmed the judgment finding the
county liable for intentionally draining water onto farmland
in order to protect a county highway. Id. at 345-46,
182 N.W.2d at 224. In forming this conclusion, we referred to
Bruha v. Bochek, where we stated,
[T]he owner of the dominant land, in the exercise of a
reasonable use of his property, has the right by means of
ditches and drains on his property to accelerate the flow of
surface waters into a natural watercourse, and into which
such waters naturally drain, provided he does not permit an
accumulation of water on his property and cast the same on
the servient land in unusual or unnatural quantities.
76 S.D. 131, 133, 74 N.W.2d 313, 314 (1955). These
principles, we held, applied to a county's
"construction, improvement, and maintenance of its
highways." Smith, 85 S.D. at 346, 182 N.W.2d at
224. "[A] county cannot divert surface waters into
unnatural watercourses or gather water together in unnatural
quantities and then cast it upon lower lands in greater
volume and in a more concentrated flow than natural
conditions would ordinarily permit." Id.
Damages caused by such an act "constitute a compensable
taking or damaging of private property for public use under
Section 13, Article VI, S.D. Constitution." Id.
The State argues that causation in this case has not been
established as there is no evidence of intentional conduct.
While intentional conduct occurred in Smith, we did
not hold that it was a necessary element for an inverse
condemnation claim. We addressed this issue in
Rupert. The City of Rapid City, relying on City
of Brookings v. Mills, 412 N.W.2d 497, 501 (S.D. 1987),
argued that the Ruperts were required to prove that the
damage to their property was the result of a "direct and
substantial action or abuse" by Rapid City.
Rupert, 2013 S.D. 13, ¶ 11, 827 N.W.2d at
61-62. In rejecting this argument, we found that the
requirement to show "proof of a 'direct and
substantial action by the government' in inverse
condemnation cases was limited to causes of action for a
'de facto taking' where the governmental entity
delayed condemning the property" and Landowners were
injured by the delay. Rupert, 2013 S.D. 13, ¶
14, 827 N.W.2d at 62. As Landowners herein are not alleging a
de facto taking, they are not obligated to prove the
intentional conduct involved a direct and substantial action
The circuit court found that the State's liability herein
arose from the construction of the Highway 11 roadbed that
obstructed the natural watercourse without creating a
sufficient passageway for drainage. The State's design
pooled water behind Highway 11 and delayed the water's
arrival to downstream locations. The circuit court found that
but for the Highway 11 obstruction, the rainfall of July
29-30, 2010, would not have caused any damage to
Landowner's properties. The State knew, or should have
known, that obstruction of the Spring Creek Tributary, absent
adequate drainage, would cause flooding.