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Zwart v. Penning

Supreme Court of South Dakota

May 16, 2018

RYAN ZWART and CHARLES ZWART, Plaintiffs and Appellees,
v.
TIMOTHY PENNING, Defendant and Appellant.

          CONSIDERED ON BRIEFS ON JANUARY 8, 2018

          APPEAL FROM THE CIRCUIT COURT OF THE THIRD JUDICIAL CIRCUIT LAKE COUNTY, SOUTH DAKOTA THE HONORABLE PATRICK T. PARDY Judge.

          CHRISTOPHER HEALY of Meierhenry Sargent, LLP Sioux Falls, South Dakota Attorneys for plaintiffs and appellees.

          N. BOB PESALL Flandreau, South Dakota Attorney for defendant and appellant.

          KERN, Justice

         [¶1.] Uphill landowners Ryan and Charles Zwart and downhill landowner Timothy Penning agreed to connect their drain-tile systems to allow for improved drainage across their parcels. The Zwarts agreed to build and maintain an independent tile line that would run across Penning's property if the system became overloaded. Penning experienced flooding shortly thereafter, and he believed the connection of the Zwarts' drain tile to his system was the cause. Penning obstructed the connection and later disconnected his drain-tile system from the Zwarts', causing water to pool on the Zwarts' property. The Zwarts sued, seeking both damages and an order permitting them to reconnect the two systems. Penning counterclaimed, arguing the Zwarts unlawfully discharged water onto his land. The circuit court held in the Zwarts' favor, awarding damages and an easement enabling the Zwarts to install an independent tile line underneath Penning's property. Penning appeals. We affirm in part and reverse in part.

         Facts and Procedural History

         [¶2.] Penning owns a 146-acre parcel of agricultural property in Moody County. The Zwarts lease 60.5 acres of agricultural property located upstream and to the north of Penning's. The Bachelor Creek stream, a tributary of the Big Sioux River, runs across the two parcels in a southeasterly direction. Moody County identifies Bachelor Creek as a blue-line drainage way, meaning a navigable waterway that an upstream landowner can drain water into without needing to acquire a waiver from downstream landowners.

         [¶3.] In 2008, Penning installed a drain-tile system, which discharges into Bachelor Creek. Additionally, Penning had an earthen berm constructed in 2008 across an artificial ditch that diverted surface runoff from the Zwarts' parcel toward Penning's surface inlet. In 2010, the Zwarts applied for a county-drainage permit to install a drain-tile system on their land. Prior to installation, the Zwarts obtained a waiver from Penning and his oral permission to connect the two drain-tile systems. The parties agreed that if Penning's land became overwhelmed as a result of the connection, the Zwarts would install their own tile line independent of Penning's underneath Penning's land. In order to connect the two systems, the Zwarts installed their tile deeper than they would have otherwise been required to dig, incurring greater expense.

         [¶4.] In 2011 and 2012, Penning experienced flooding on several acres. Penning believed the interconnection of his drain-tile system with the Zwarts' caused it to overload. Sometime around December 2011, Penning met with the Zwarts and allegedly granted them a waiver to install their own independent tile line underneath Penning's property.[1] In June or July 2012, Penning installed a restrictor plate at the property line to partially block the flow of water from the Zwarts' drain-tile system into Penning's. In 2013, Penning removed the earthen berm. That same year, the Zwarts' discovered and removed the restrictor plate after ponding occurred on their land. The Zwarts then filed a complaint with the Moody County Drainage Board and the Natural Resources Conservation Service. Shortly thereafter, Penning applied for a permit from the Board to modify his drain-tile system and disconnect it from the Zwarts'. On August 20, 2013, after a contested drainage hearing, the Board granted Penning's application. Penning disconnected his system, rendering the Zwarts' drain-tile system ineffective. Penning also revoked his permission to allow the Zwarts to install their own tile across his field.

         [¶5.] On August 18, 2014, the Zwarts filed an amended complaint against Penning. The Zwarts alleged Penning unlawfully blocked a natural drainage way and committed trespass by causing water to pond on the Zwarts' land. The Zwarts also pled breach of contract, arguing they had acted in reliance on Penning's agreement by installing tile at a depth that required interconnection with Penning's for it to function properly. The Zwarts sought damages and an order allowing them to reconnect their system to Penning's. On September 10, 2014, Penning counterclaimed alleging unlawful discharge of water and trespass.[2]

         [¶6.] On February 16, 2017, the court held a bench trial. In a letter decision issued March 1, 2017, the court determined that Penning violated civil drainage law by obstructing a natural watercourse. Rejecting Penning's counterclaim, the court observed that the Zwarts did not increase the amount of water that would otherwise drain naturally across the Penning's parcel. With respect to trespass, the court held that "[o]ne who erects a dam or barrier preventing or altering the natural discharge of water, thereby intentionally causing the water to back up and flood the land of another, constitutes a trespass." In support of this holding, the court cited a Kentucky Supreme Court decision, Judd v. Blakeman, 195 S.W. 119 (Ky. 1917). Finding that Penning intentionally installed such a barrier, the court held that Penning committed a trespass. Conversely, with respect to Penning's counterclaim for trespass, the court observed that "[t]he water at issue was already destined to arrive upon [Penning's] property" and rejected the claim. On the Zwarts' breach-of-contract claim, the court held sua sponte that the doctrine of promissory estoppel applied. The court concluded that the Zwarts justifiably relied on Penning's promise that they could install an independent tile line if the joint system became overwhelmed and that the Zwarts suffered substantial and foreseeable economic damages as a result of the denial.

         [¶7.] On March 17, 2017, the circuit court issued findings of fact and conclusions of law. The court awarded the Zwarts $17, 705.34 for crop damages caused by excess water on the land between 2012 and 2016 and required Penning to pay prejudgment interest. The court also held that the Zwarts were entitled to an easement to install and maintain an independent tile line underneath Penning's property. On June 7, 2017, the court entered its final judgment. Penning appeals, raising three issues for our review:

         1. Whether either party violated the civil law rule.

         2. Whether the doctrine of promissory estoppel permitted the circuit court ...


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