Bogue v. Clay County

• Decision Date: 25 September 1953
• Docket Number: No. 9362,9362
• Citation: 60 N.W.2d 218,75 S.D. 140
• Parties: BOGUE v. CLAY COUNTY.
• Court: South Dakota Supreme Court

Page 218

60 N.W.2d 218

75 S.D. 140

BOGUE v. CLAY COUNTY.

No. 9362.

Supreme Court of South Dakota.

Sept. 25, 1953.

Everett A. Bogue, Vermillion, for respondent.

Martin Weeks, Jr., Vermillion, and Louis B. French, Yankton, for appellant.

LEEDOM, Judge.

Plaintiff landowner obtained a judgment in the circuit court enjoining the defendant Clay County from discharging upon plaintiff's land surface water and silt collected in a road ditch; and for $300 damages resulting from the flooding of the land in 1951. Clay County has appealed. We affirm the judgment.

The appellant county urges 5 grounds to establish its nonliability. They are: (1) that there is no cause of action against the county in that it had no duty to perform in the highway improvement resulting in the ditch, inasmuch as the road was built under the provisions of SDC Supp. 28.0225 through 28.0231, Ch. 116, Laws 1945, pursuant to which the State of South Dakota rather than Clay County entered into the contract for the grading; and the county received Federal Aid; that there being no duty in the county there can be no breach of duty nor any cause of action; (2) that there is insufficient evidence to support the trial court's finding that respondent's damage was caused by an artificial diversion of water and that the flooding if any is due to a natural flow of water; (3) that even if the county did divert water onto and flood respondent's land it had gained a prescriptive right to do so; and that respondent's laches bar his remedy; (4) that in no event is respondent entitled to injunctive relief; or (5) to damages.

Appellant's point (1) is not well taken. A county road is no less a county road for being built with Federal Aid under SDC Supp. 28.0225 et seq. This act requires 'the political subdivision having control of the highway' to request the improvement project by resolution, SDC Supp. 28.0227, and appellant so instigated the regrading of the county road that resulted in the questioned changes in the ditch. The act specifically provides that the 'jurisdiction and control of the highways * * * shall be and remain in the cunty', SDC Supp. 28.0230; and that the state participates only as the agent of the county. SDC Supp. 28.0231. Clearly the position of Clay County, with respect to the 'taking' or 'damaging' of respondent's property for highway purposes, that is with respect to acquiring whatever private property was needed and damaged for the public use, is the same as if the road had not been built under the Federal-Aid plan. Proceeding then to a consideration of the problem as if the county had not received Federal Aid it is highly significant that respondent's action is not based on negligence; there is no allegation of negligence in the complaint. See Hyde v. Minnesota, D. & P. Ry. Co., 29 S.D. 220, 231, 136 N.W. 92, 96, 40 L.R.A.,N.S., 48. The action rather is for 'taking' or 'damaging' property for a public use, the complaint alleging that appellant's reconstruction of the road 'greatly diminished' respondent's premises. Neither the county nor even the sovereign state can take or damage private property for public use without first paying for it. Art. VI, Sec. 13, State Contitution; and see discussion in Hyde v. Minnesota, etc., supra. The instant case is distinguished from Vesely v. Charles Mix County, 66 S.D. 570, 287 N.W. 51, as that action was based on negligence; and from Alcorn v. Edmunds County, 59 S.D. 512, 241 N.W. 323, in that there the liability of the county depended on statutory provisions not here involved. The liability of a county under circumstances of 'taking' or 'damaging' private property not essentially different from the manner of taking or damaging present in the case at bar, was recognized in La Fleur v. Kolda, 71 S.D. 162, 22 N.W.2d 741.

Appellant's points (2) and (3), i. e., insufficiency of the evidence and the prescriptive right to discharge the waters on respondent's land, involve determination of fact questions some of which in our opinion are close but all of which were resolved against appellant by the trial court.

The ditch involved is the usual drainage ditch immediately adjacent to the side of graded roads, constructed to drain surface water away from the road bed. This ditch is on the west side of the county highway which extends directly north from the Vermillion river bordering respondent's bottom land on the east a distance of about 80 roads or quarter of a mile, then over a rather abrupt hill, 'the Vermillion River bluffs' and directly north to a 'summit' an additional estimated mile and a half where the general course of drainage changes. The ditch parallels the road all the way on the west side unobstructed from the summit south to a point just over the brow of the bluff where it terminates. As the now grade exists there is no ditch from the point of termination on the bluff south to the river inasmuch as the elevation of the road grade is of a greater height, above the adjoining land, than the depth of the designed ditch. The point where the ditch ends is adjacent to plaintiff's land which extends along the west side of the road south to the river as stated and north over the brow of the hill about a quarter of a mile. The road was reconstructed in 1949. At that time a county road had been in the same location for many years, more than 26, and a ditch had extended along the west side of the old road. According to all the testimony the new ditch is substantially wider than the old, possibly as much as 4 feet wider in places, and about 6 or 8 inches deeper. It is also undisputed that the old ditch ran from the summit south over the brow of the hill and then from an indefinite point south of the hill on south to the river. Respondent's witness, the tenant on the land for more than 20 years, testified that the ditch ran without a break from the summit to the river. An engineer called by both appellant and respondent testified that during his observation going back as far as 1940, the old ditch extended from the north all the way to a point part way down the hill where it ended and began again at approximately the foot of the hill and extended on south 'practically to the river'. The engineer characterized the ditch at the bottom of the hill as a borrow pit. On cross-examination the tenant, confronted with the claim that there was never a ditch from the foot of the hill for a short distance south, testified that there had always been a ditch there but that it had become somewhat filled at the foot of the hill with gravel. There is no dispute that from practically the river to 'approximately the foot of the hill' there had always been a ditch along the west side of the old road grade that served to drain at least some of the water off respondent's bottom land into the river. Respondent's tenant testified the old ditch had always adequately drained the low land including all surface water coming over the brow of the bluff in the ditch. The engineer testified that the old ditch did not drain all of it. Appellant offered evidence of unusually heavy rainfall in 1951 the year for which the court allowed flood damages. The tenant testified that he had never at any other time, including other years of exceptionally heavy rainfall, had any serious trouble and that the old ditch proved an adequate drain in all these years. The engineer testified that a ditch could be constructed to carry the water across the bottom land but it would not be according to standard practice. The plans for the new construction prepared in 1940 show cross sections of both the old and the new grade at regular 100' intervals. These plans show that the old ditch lapsed or 'tailed out' at about the place indicated by the engineer's testimony. On the strength of this evidence that the old ditch discontinued part way down the hill as far back as 1940 and on the inference that there must have been no ditch at this point at any time prior to 1940 since there had been no substantial work done on the highway except in 1949, appellant argues there was no ditch at any time from the point part way down the bluff to the 'borrow pit' at the foot of the hill and that therefore even the old ditch discharged waters over respondent's land. It is on this contention that appellant bases the claim to a prescriptive right to discharge the waters.

The oral evidence and a topographical map indicate that the land north of the bluff to the summit is rather flat and that the general direction of drainage from the summit to the river is toward the south and at places between the summit and the bluff somewhat southeast. North from the summit the drainage is toward the north. There are no culverts across the highway grade at any place from the summit to the river and surface waters draining from the drainage area west of the road, an area about 800 feet wide at its greatest width, follow the ditch south over the brow of the bluff and discharge and spread upon...