Gross v. Connecticut Mut. Life Ins. Co.

• Decision Date: 15 February 1985
• Docket Number: 14315 and 14331,Nos. 14036,s. 14036
• Parties: John GROSS, Ben Gross and Dean Nelson (# 14036), Plaintiffs and Appellants, v. CONNECTICUT MUTUAL LIFE INSURANCE COMPANY (# 14315), Defendant and Appellee, and Missouri Slope Feedlot, Inc., Mid-Dakota Feedlot Development Corporation and James Sutton (# 14331), Defendants and Appellees.
• Court: South Dakota Supreme Court

Page 259

361 N.W.2d 259

John GROSS, Ben Gross and Dean Nelson (# 14036), Plaintiffs and Appellants, v. CONNECTICUT MUTUAL LIFE INSURANCE COMPANY (# 14315) Defendant and Appellee and Missouri Slope Feedlot, Inc., Mid-Dakota Feedlot Development Corporation and James Sutton (# 14331), Defendants and Appellees.

Nos. 14036, 14315 and 14331.

Supreme Court of South Dakota.

Argued April 17, 1984.

Decided Jan. 9, 1985.

Rehearing Denied Feb. 15, 1985 in No. 14315.

Charles Rick Johnson of Johnson, Eklund & Davis, Gregory, for plaintiffs and appellants.

Robert B. Anderson of May, Adam, Gerdes & Thompson, Pierre, for defendant and appellee.

Darla Pollman Rogers of Meyer & Rogers, Onida, for defendants and appellees; Brian B. Meyer of Meyer & Rogers, Onida, on brief.

HENDERSON, Justice.

ACTION

This is a consolidated appeal, ordered by this Court, arising from a summary judgment order denying a permanent injunction entered November 2, 1982, and a judgment entered for damages to realty, filed July 22, 1983. We affirm the summary judgment denying the permanent injunction and affirm the damage award.

PROCEDURAL BACKGROUND

Separate actions were filed on June 20, 1980, by plaintiffs John and Ben Gross and plaintiff Dean Nelson against all defendants. Count I of the complaints requested damages for alleged flooding of plaintiffs' property by defendants. Count II requested a permanent injunction against any further flooding. Answers were filed, as well as cross-claims, between defendant Connecticut Mutual and the other defendants collectively. These cases were consolidated by order of the trial court on August 4, 1982.

Connecticut Mutual moved for summary judgment on both counts. Though summary judgment was denied as to Count I, Circuit Judge Patrick McKeever granted Connecticut Mutual's motion as to the request for injunctive relief on November 2, 1982. Thus, Count II of plaintiffs' complaint was dismissed on the merits and with prejudice. Notice of appeal on this order was filed December 22, 1982. Judge McKeever thereafter recused himself from any further proceedings.

Trial on Count I of plaintiffs' action was held before Circuit Judge Robert Miller on January 12-13, 1983. Judgment was entered July 22, 1983, finding each of the named defendants jointly and severally liable and awarding plaintiff Dean Nelson $8,000 damages and plaintiffs John and Ben Gross $16,000 damages, all for temporary and permanent injury to their land. Additionally, the Grosses were awarded $25,000 damages for the pollution and contamination of their domestic water well.

FACTS

Mid-Dakota Feedlot Development Corporation (Mid-Dakota) owned land near Onida, South Dakota, and constructed a cattle feedlot thereon. Upon completion of the feedlot, Missouri Slope contracted with Mid-Dakota to lease and operate the premises. Connecticut Mutual Insurance Company (Connecticut Mutual) held the first mortgage on the property.

Mid-Dakota defaulted on its loan and Connecticut Mutual commenced foreclosure proceedings. A judgment of foreclosure was obtained in the spring of 1979. A judicial sale was conducted on April 12, 1979, at which Connecticut Mutual bid in its mortgage. Connecticut Mutual received a Sheriff's Certificate. Mid-Dakota never waived or relinquished its right of redemption during the one-year redemption period commencing April 12, 1979, and ending April 11, 1980.

The directors of Missouri Slope held their last corporate meeting in July 1978, and were thereafter considered by all parties to be a "defunct" corporation.

During the one-year redemption period, a lease agreement was entered into between Mid-Dakota and James Sutton, a former director of Missouri Slope. Sutton did not pay rent on the property, but agreed to maintain the feedlot in exchange for the use of the premises.

Missouri Slope held a discharge permit from the Environmental Protection Agency (EPA) during the time the feedlot was in operation. In 1979, the EPA issued an order of violation against Missouri Slope. Dam safety personnel from the South Dakota Department of Water and Natural Resources investigated. Department personnel, concerned that the dam could not continue to hold the quantities of water and effluent contained in the irrigation pond, warned that the dam could possibly break if remedial measures were not undertaken before additional quantities of water and effluent entered the pond.

A system of lagoons and settling ponds had been designed to accommodate the water While the level of the irrigation pond had customarily been lowered by the use of irrigation pumping equipment, defendants did not resort to this method of alleviating the water in the pond. Instead, the former directors of Missouri Slope met in October 1979 and devised a plan to breach the dam. The Department of Natural Resources determined that the pond water was of sufficient quality and sanctioned the plan. Money for implementing the plan, including Sutton's, was contributed by these former directors.

and liquids from the feedlots and were designed to be periodically pumped dry. The solid materials and wastes from the feedlot runoff were supposed to travel to the settling ponds where they would be collected and appropriately disposed of at a later date. One of the settling ponds had been drained into the irrigation pond dam prior to October 1979.

Plaintiff Dean Nelson owned crop and pasture land just below the Mid-Dakota feedlot property. Plaintiffs Ben Gross and John Gross also owned farmland below and adjacent to that of Dean Nelson.

On October 22, 1979 (during the one-year redemption period), the irrigation pond dam was cut, releasing waters onto the lands below. Plaintiff Dean Nelson constructed a make-shift dam to prevent the released water from entering his property. The dam proved adequate. However, a second cut was made in the feedlot dam on October 29, 1979. The flow of water from this cut, accumulated with that already held by Nelson's improvised dam, passed around that dam and flooded a quarter-section of land. Nelson's quarter of land was inundated with water which consisted of 70 acres of farm ground, 50 acres of grass, and 40 acres embodying buildings, airstrip, and a machine storage area. The waters continued to flow down upon the land of John and Ben Gross, flooding a portion of two quarters. The flood waters froze and remained throughout the winter, not dissipating until May 1980.

The trial court found that the water was foul and polluted from feedlot waste. This feedlot effluent had a foul odor, a reddish-green color, and contained a great deal of debris and sediment. Nelson could not winter his cattle on a one-half section of land which was located to the east and removed from the path of drainage. Nelson expended $2,370 in landscaping costs on the affected quarter-section in 1980 after his land dried off. It appears that Nelson lost his efforts of summer fallowing and lost, for years, as effective a hay crop and crop because of the noxious weed seeds implanted in the soil arising from the flooding. Nelson testified as to a general decreased market value, not only as to his entire farm, but also, alternatively, a decreased market value in the quarter-section which had been flooded. With respect to the Grosses, flood waters and foul effluent also covered their lands, froze during the winter, and remained there from October 1979 until May 1980. Not only did the Grosses complain of foul sedimentation by the effluent, but diverse objects also flooded upon their land consisting of many vaccine bottles, old jugs, posts, manure, and other debris, much of which remained on their lands after the flooding waters had dissipated. The Grosses had a domestic water well on this flooded property and they testified that this foul and obnoxious effluent and sedimentation, with a strong offensive odor and brackish yellow water, filtered into their drinking water. Circuit Judge Robert Miller, the fact finder and in a sense the jury, personally viewed all of this property and the damage, to include this well, and found, from his personal eyesight and knowledge, that there was a temporary and permanent injury to the land belonging to Nelson and the Grosses. Circuit Judge Miller, we now note, is not confined to the testimony of Nelson or the Grosses concerning damages because he personally witnessed the damage. Without doubt, the circuit judge was impressed with not only his personal observation of the well, but the fact that Ben Gross testified that he has refused to drink water from this contaminated well and has purchased or otherwise obtained water for his consumption elsewhere since the aftermath of Defendants deny all liability, each claiming they had no control over nor responsibility for maintenance of the feedlot property. They further maintain that they were well within legal rights in allowing the flow of "surface" waters upon lower landowners. We treat four separate issues.

                the flooding.  John Gross corroborated the testimony of Ben Gross expressing that the quality of the domestic well was putrid following the flooding and that he would not and could not consume the water from the well.  The Grosses, and it is undisputed in the evidence, installed a purifier to the well water system so the water could be used for cooking purposes but they have refused to personally consume the water therefrom as drinking water.  There was considerable testimony from both Ben Gross and John Gross of their damage, not only including the above, but that the value of the property was diminished in the amount of $100 per acre from the flooding (per testimony of Ben Gross).  John Gross testified that the Grosses had suffered $50,000 damages attributable to the well contamination alone and that their lands had been damaged $80 to $100 per acre.  During the view of the trial court, the trial court personally observed the feedlot pens, lagoons, settling ponds, irrigation pond and dam, adjacent lands,

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