City of Sioux Falls v. Miller

• Decision Date: 28 May 1992
• Docket Number: No. 17711,17711
• Citation: 492 N.W.2d 116
• Parties: CITY OF SIOUX FALLS, Plaintiff and Appellee, v. Arnold E. MILLER and Pansy O. Miller, Defendants and Appellants. . Considered on Briefs
• Court: South Dakota Supreme Court

Page 116

492 N.W.2d 116

CITY OF SIOUX FALLS, Plaintiff and Appellee, v. Arnold E. MILLER and Pansy O. Miller, Defendants and Appellants.

No. 17711.

Supreme Court of South Dakota.

Considered on Briefs May 28, 1992.

Decided Nov. 4, 1992.

William P. Fuller and Mark J. Welter of Woods, Fuller, Schultz & Smith, Roger L. Schiager, Sioux Falls, for plaintiff and appellee.

Robert L. O'Connor and Patrick J. Kane, Sioux Falls, for defendants and appellants.

WUEST, Justice.

The City of Sioux Falls (City) brought an action against the Millers, Arnold and Pansy (the Millers), for violating the City's zoning ordinance. The Millers counterclaimed for continuing flood damage to their business, allegedly caused by City's raising a nearby street grade and replacing a ditch and culvert system with narrow and inadequate storm sewers which collected and discharged surface water onto the Millers' property. The counterclaim was based primarily on the theories of nuisance and inverse condemnation. The trial court set City's claim for trial and granted City's motion for summary judgment on the Millers' counterclaim. The Millers appeal. We reverse.

The primary issue involved in this appeal is whether the trial court erred in granting the City's motion for summary judgment and holding the Millers' claims were time-barred.

FACTS

In 1973, City constructed and installed a storm-sewer system and street in the industrial park area on its north side. The Millers' property lies within this area. When the Millers began occupying their property, City was in the process of constructing Blackhawk Street in front of their property. According to the Millers, the property flooded shortly after their occupation in 1973. In October of 1973, the Millers retained a Sioux Falls attorney to "investigate suit against the City of Sioux Falls" allegedly arising from the grading of and installation of gutter on Blackhawk Street. The attorney wrote the City Engineering Department on October 22, 1973, advising City that litigation was being considered. No suit was brought.

In the latter part of the 1980's, City received a series of complaints from adjoining property owners concerning the junkyard-like conditions on the Millers' property. Glenn Adler, Environmental Health Supervisor for the City Health Department, sent a letter to Mr. Miller requesting he take steps to clean up the property. Miller failed to respond, and Adler personally visited the premises and was concerned about its condition. The property was strewn with concrete rubble and blocks, old tires, discarded machinery parts and junk vehicles.

City instituted a nuisance action against Miller seeking a court order requiring the Millers to abate the nuisance on their property.

The Millers answered and counterclaimed, seeking monetary damages for periodic flooding of the property. The Millers allege City, in 1973, negligently constructed and installed Blackhawk Street and the storm sewer system, causing surface water to be diverted onto their property. The Millers contend they suffered periodic episodes of flooding, resulting in $2,000 worth of damage on each occasion. They further allege the periodic flooding diminished the value of their property in an amount not less than $50,000.

City moved for summary judgment on the basis of the statute of limitations and laches. The statute of limitations motion was premised upon the fact the street and sewer system was designed and constructed in 1973. The laches motion was based on the Millers' recognition of a potential claim in 1973 and delay in taking any action until counterclaiming in 1989. The trial court granted summary judgment on behalf of City on the basis that the Millers' cause of action accrued in 1973, and was barred by the six-year statute of limitations set out in SDCL 15-2-13(3). ¹ The Millers appeal the trial court's award of summary judgment.

We first note our standard of review of orders granting summary judgment:

In reviewing a grant or denial of summary judgment under SDCL 15-6-56(c), we must determine whether the moving party demonstrated the absence of any genuine issue of material fact and showed entitlement to judgment on the merits as a matter of law. The evidence must be viewed most favorably to the non-moving party and reasonable doubts should be resolved against the moving party. The non-moving party, however, must present specific facts which demonstrate a genuine, material issue for trial. When no genuine issue of fact exists, summary judgment is looked upon with favor and is particularly adaptable to expose sham claims and defenses. Our task on appeal is to determine only whether a genuine issue of material fact exists and whether the law was correctly applied. If there exists any basis which supports the ruling of a trial court, affirmance of a summary judgment is proper.

Clauson v. Kempffer, 477 N.W.2d 257, 258 (S.D.1991) (quoting Taggart v. Ford Motor Credit Co., 462 N.W.2d 493, 498 (S.D.1990) (citations omitted)).

The trial court, relying on King v. Hutterische Bruder Gemeinde, 32 S.D. 541, 143 N.W. 902 (1913), held the water problem was of a "continuing permanent nature." In addition, the court stated the statute of limitations began to run in 1974 when the damage was apparent to the Millers. The Millers assert the trial court erred in ruling their cause of action was time-barred because the damage sustained "is easily abatable without dismantling the offending street project," thereby raising a material issue as to whether the cause of injury was continuous and whether a new cause of action arose with each occurrence.

Initially it is important to classify whether the nuisance involved in this case was a "continuing nuisance" or a "permanent nuisance." This distinction in nuisance actions is important for statute of limitations purposes. "If the invasion is deemed to be 'permanent,' there is but one cause of action, and the statute of limitation commences to run from the time the invasion began, or when it became known to the aggrieved party." Beatty v. Washington Metro. Area Transit Auth., 860 F.2d 1117, 1122 (D.C.Cir.1988); Dan D. Dobbs, Handbook on the Law of Remedies Sec. 5.4, at 343 (1973); 58 Am.Jur.2d Nuisances Sec. 307 (1989). In general, a permanent nuisance is one which "will be reasonably certain, or will be presumed, to continue indefinitely ..." in the future. 58 Am.Jur.2d Sec. 27; Beatty, 860 F.2d at 1122 (citing Harrisonville v. W.S. Dickey Clay Mfg. Co., 289 U.S. 334, 339 n. 4, 53 S.Ct. 602, 604 n. 4, 77 L.Ed. 1208, 1212 n. 4 (1933)). That a nuisance is permanent, contemplates "that it is at once necessarily productive of all the damage that ever can result from it." Patz v. Farmegg Products, Inc., 196 N.W.2d 557, 562 (Iowa 1972); 58 Am.Jur.2d Sec. 27. In other words "by one act a permanent injury is done, [and] damages are assessed once and for all." Baker v. Burbank-Glendale-Passadena Airport Auth., 39 Cal.3d 862, 218 Cal.Rptr. 293, 297, 705 P.2d 866, 870 (1985), cert. denied, 475 U.S. 1017, 106 S.Ct. 1200, 89 L.Ed.2d 314 (1986). In such cases, plaintiffs ordinarily are required to bring one action for all past, present, and future damage. Id. "[T]he applicable statute of limitations may bar any action if it is not brought within the prescribed period after the first actionable injury; that is, the applicable [statute] of limitations bars all claims of damages, present and future, after the last of the statutory period." 58 Am.Jur.2d Sec. 307. "Nuisances which are unquestionably permanent in nature have involved solid structures, such as a building encroaching upon the plaintiff's land, a steam railroad operating over plaintiff's land, or a grade of a street for a rail system." 58 Am.Jur.2d Sec. 27.

On the other hand, "if a nuisance is a use which may be discontinued at any time, it is considered continuing in character." 58 Am.Jur.2d Sec. 28. "A temporary or continuing nuisance has been said to be one which is intermittent or periodical." Id. Accord Beatty, 860 F.2d at 1122 (citing Harrisonville, 289 U.S. at 337, 341, 53 S.Ct. at 603, 605, 77 L.Ed. at 1213); Baker, 218 Cal.Rptr. at 297, 705 P.2d at 870. Thus, "if a structure, even though permanent, can be changed, repaired, or remedied at a reasonable expense to abate a nuisance, the condition is temporary." 58 Am.Jur.2d Sec. 30. Where an invasion is deemed "temporary" or "continuing," a new cause of action arises with each new invasion or injury. In other words, the persons harmed may bring successive causes of action for damages until the nuisance is abated. Dobbs, supra, Sec. 5.4, at 343; Beatty, 860 F.2d at 1122; Baker, 218 Cal.Rptr. at 297, 705 P.2d at 870.

Professor Dobbs, in his hornbook, sets out several factors courts have considered in determining whether a nuisance is permanent. These factors are:

(1) [I]s the source of the invasion physically permanent, i.e., is it likely, in the nature of things, to remain indefinitely?

(2) [I]s the source of the invasion the kind of thing an equity court would refuse to abate by injunction because of its value to the community or because of the relations between the parties?

(3) [W]hich party seeks the permanent or prospective measure of damages?

Dobbs, supra, Sec. 5.4, at 338.

Professor Dobbs further states "First, a nuisance or trespass is usually not regarded as a permanent one unless it is physically permanent or likely to continue indefinitely." Dobbs, supra. Under the second part of the test, Dobbs mentions that there are two large classes of cases, in which courts will not order removal of the trespassing structure or cessation of the operation of a nuisance-causing activity. In one class the defendant has the power of eminent domain. In such cases, courts will not force the defendant to cease operation since the defendant could, after a formal condemnation, continue its operation. "In a case like this, then, the source of the nuisance or trespass is physically...