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Long v. State

Supreme Court of South Dakota

November 21, 2017

STATE OF SOUTH DAKOTA, Defendant and Appellant.

          Argued on January 12, 2016


          MARK V. MEIERHENRY CHRISTOPHER HEALY CLINT SARGENT of Meierhenry Sargent, LLP Sioux Falls, South Dakota Attorneys for plaintiffs and appellees.

          GARY P. THIMSEN JOEL E. ENGEL III of Woods, Fuller, Shultz & Smith, PC Sioux Falls, South Dakota Attorneys for defendant and appellant.


          KERN, Justice

         [¶1.] 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 affirm.


         [¶2.] 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.

         [¶3.] 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.

         [¶4.] 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.

         [¶5.] 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 40 cfs.

         [¶6.] 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.

         [¶7.] 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.[1]

         [¶8.] 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.

         [¶9.] 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.

         [¶10.] 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.

         [¶11.] 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]."

         [¶12.] 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.

         [¶13.] 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."

         [¶14.] 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.

         [¶15.] The State appeals and we restate the issues as follows:

1. Whether Landowners' claims were barred by sovereign immunity.
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.


         1. Whether Landowners' claims were barred by sovereign immunity.

         [¶16.] 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.[2] 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.

         [¶17.] 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.

         [¶18.] 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.[3] 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.

         [¶19.] 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 11.[4] 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).

         [¶20.] 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.

         2. 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.

         [¶21.] 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.

         [¶22.] 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.

         a. Did the construction of Highway 11 cause water to invade Landowners' properties?

         [¶23.] The State alleges that the duty to show both actual and proximate causation is implicit in inverse condemnation. We agree.[5] 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 inquiries." Id.

         [¶24.] 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.

         [¶25.] 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.[6]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.

         [¶26.] 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. 1992).

         [¶27.] 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."[7] 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."[8] Musch, 487 N.W.2d at 625.

         [¶28.] 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.

         [¶29.] 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 made." Id.

         [¶30.] 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.

         [¶31.] 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.

         [¶32.] 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 or abuse.

         [¶33.] 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.

         b. ...

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