Highview North Apartments v. County of Ramsey, 81-676

• Decision Date: 20 August 1982
• Docket Number: 81-971 and 81-921.,No. 81-676,81-676
• Citation: 323 NW 2d 65
• Parties: HIGHVIEW NORTH APARTMENTS, a Partnership, Respondent, v. COUNTY OF RAMSEY, Appellant (81-676), City of Maplewood, Appellant (81-971), City of North St. Paul, Appellant (81-921).
• Court: Minnesota Supreme Court

323 N.W.2d 65 (1982)

HIGHVIEW NORTH APARTMENTS, a Partnership, Respondent, v. COUNTY OF RAMSEY, Appellant (81-676) City of Maplewood, Appellant (81-971) City of North St. Paul, Appellant (81-921).

Nos. 81-676, 81-971 and 81-921.

Supreme Court of Minnesota.

August 20, 1982.

Tom Foley, County Atty., Steven C. DeCoster and David MacMillan, Asst. County Attys., St. Paul, for Ramsey County No. 81-676.

Maun, Green, Hayes, Simon, Murray, Johannenson & Brehl and Merlyn C. Green, Lais, Bannigan & Cerisi and John F. Bannigan, Jr., St. Paul, for City of Maplewood No. 81-971.

Memmer, Casell, Parks & Beck, Seldon H. Caswell and Gregory J. Tavernier, St. Paul, for City of North St. Paul No. 81-921.

Leonard, Street & Deinard, Nancy C. Dreher and Richard Rapson, Minneapolis, for respondent.

Heard, considered and decided by the court en banc.

SIMONETT, Justice.

Defendant municipalities appeal from a judgment holding them liable on a nuisance theory for damages to plaintiff's property attributed to defendants' water drainage systems. Defendants contend that no causal connection between their actions and plaintiff's damage was proven, that in any event nuisance does not lie, and that, at the very least, the damage award is improper and excessive. We affirm.

In early 1980 the plaintiff, Highview North Apartments, a partnership, sued defendants County of Ramsey, City of Maplewood, and City of North St. Paul. Fourteen years before, in 1966, Highview had built three apartment buildings on a 4-acre site in North St. Paul. Some 4 or 5 years thereafter, about 1971 or perhaps as late as 1975, water began to seep into the basements of two of the apartment buildings and create serious problems. In suing, Highview contended that the municipal storm sewer lines and holding ponds jointly planned and installed by the three defendants over the 14-year period were the proximate cause of the water damage to its buildings. Highview alleged counts of negligence, trespass and nuisance.

The district court, after a 40-day bench trial, found that defendants' activities had caused a flooding of plaintiff's basements; that this conduct constituted a nuisance; that since it was not feasible to abate the nuisance — the storm sewer system being in place — defendants should pay plaintiff damages of $189,833, of which $113,200 was for plaintiff to replace the unusable basement space; and that defendants were jointly and severally liable for the damages. We take up each of these points in turn.

I. The first issue is whether or not the actions of the defendant municipalities in the planning and implementation of their drainage system caused the water damage to plaintiff's apartment buildings. The trial court so found. Our role on appeal is not to retry the case but to determine only if the trial court's findings are clearly erroneous. We hold the trial court's findings on the issue of causation are not clearly erroneous.

The three apartment buildings are located at 2035, 2045 and 2055 North St. Paul Road in the City of North St. Paul. To the east some 100 feet is the boundary between North St. Paul and the City of Maplewood. The Highview tract is bounded on the west and north by Goodrich Golf Course, owned and operated by Ramsey County; on the south by North St. Paul Road, which runs at an angle from southwest to northeast; and on the east by Seventh Street, which runs north and south. North St. Paul Road was built at an artificial elevation substantially higher than the apartment site.

Surface water in the area, as well as ground water, flows generally from the southeast to the northwest. Thus, "upstream" in this locale means toward the southeast. Surface water collecting to the east and south of the Highview tract flows northwesterly, towards the Highview tract; it continues northwesterly through drain tiles under the "dike" of North St. Paul Road, across the Highview tract and into a "swale" near the west line of the Highview tract. The water then continues across the golf course to its northwest corner and beyond.

As stated, plaintiff built the apartment buildings in 1966, and they were put in use in 1967. At least until November 1971, the basements were dry. Either in late 1971 or in 1974, depending on which witnesses' testimony is believed, a serious water problem began to be evident, and it grew worse as the years went by. By the spring of 1975, the basements in two of the buildings were flooded; water reached a depth of at least 6 inches; and sump pumps ran regularly in an attempt to keep up with the influx of ground water through the joints between the floor slab and the walls. Equipment and materials stored in the basements had to be removed.

Apparently the water table levels under the apartment buildings had risen.¹ The major fact issue at trial was the cause of the rise in the water table level. Was it simply a natural recharging of the water table from increased precipitation in the years after construction, compounded by initial mistakes in the siting of the two affected buildings, as defendants maintained? Or was it caused by the municipal storm sewer project, as plaintiff contended?

1. In 1966, North St. Paul decided to construct storm sewers, in part to facilitate drainage of the area on the southeast side of North St. Paul Road. This sewer line, known as the "North St. Paul 1966 line," would cross the Highview tract and drain into the Goodrich Golf Course. Part of the City of Maplewood would be drained by the proposed line as well. The city engineer for North St. Paul talked with the Maplewood and Ramsey County civil engineers and with one of the Highview owners, Sanders Ackerberg, because of the varying effect the proposed line would have on each party. The municipalities reached an informal agreement. Maplewood was to design the proposed line, North St. Paul would install it, and Ramsey County would take care of the drainage once it reached the golf course. According to North St. Paul's engineer, the municipalities understood that more storm sewers would have to be installed later in Maplewood which would drain into the same area at the golf course.

With this understanding, the drainage plan was implemented by these five steps:

1. In 1966, a 27-inch reinforced concrete storm sewer was installed on Highview\'s property, collecting water from Highview\'s 4-acre site. This line did not go under North St. Paul Road. It terminated at the west line of the Highview tract, at the edge of the golf course.²

2. In 1968 or 1969, Ramsey County shaped the area of the western swale so as to create a trilobal-shaped ponding area on the golf course near the discharge end of the North St. Paul line, in close proximity to the apartment buildings. A 2-foot raised berm was put across the swale.

3. In 1971, North St. Paul extended its 1966 sewer line under North St. Paul Road and to the south and northeast to service a watershed area of approximately 30 acres. The trilobal pond on the golf course was now continually full of water.

4. In 1974, Maplewood built a 30-inch storm sewer line to serve a watershed area of approximately 55 acres of urbanized land. This line also went under North St. Paul Road, then adjacent to the west boundary of the Highview property, terminating at the same trilobal pond as did the 1966 North St. Paul line.

5. In 1975, Ramsey County, responding to complaints that the trilobal pond was overflowing and flooding the golf course, enlarged the trilobal pond, now the "south pond" (removing some 700 cubic yards of dirt) and also excavated a depression north of the trilobal pond (removing some 3,300 cubic yards of dirt) to create a second pond (the "north pond"). The berm across the swale was raised another 2 feet, and in 1977 an overflow pipe connection between the two ponds was installed.

The two detention ponds thus received and stored storm water runoff imported from a watershed of some 85 acres of developing urban land in Maplewood and North St. Paul. The two lines discharging into the ponds have a total capacity of 60 cubic feet per second. The ponds are designed to rise during storms to levels above the elevation of the basement slabs of plaintiff's apartments and to store up to 6 acre feet of storm water.

2. Highview's experts testified that, in their opinion, the rise in the ground water level under the apartment buildings was caused by the two detention ponds and that the ponds created an underground barrier which impeded the natural flow of ground water away from plaintiff's property, recharging the ground water levels upstream, thus forcing them to rise to unnatural heights throughout plaintiff's land. These opinions were explored in detail and had a credible basis. The trial court relied in large part on the testimony of Highview's experts, and we cannot say that doing so was clearly erroneous.

3. In appealing the trial court's finding of causation, the defendants note again the evidence they offered at trial. First, defendants argue the natural water table had once been much higher and point to the testimony of witnesses who lived in the area prior to 1958 and who recalled ponding in the swale and water collecting in parts of the area now known as the Highview tract. This testimony, however, was disputed by a prior owner of the property. Defendants attempt to cast doubt on the readings of the preconstruction site-boring tests conducted for Highview, suggesting the basement slabs may not have been above or were hardly above the then natural water level, but the trial court could have found otherwise, as it did. Defendants note that a drain tile system was installed during initial excavation for the basement of building 2035 to handle a water problem, but the trial court could have found, as it did, that the water problem was a result of heavy rainfall, not, as defendants suggest, from a piercing of the ground water table.

Second, defendants argue, apparently in support of their missiting contention,...