Huber v. Oliver County, 990093.

• Decision Date: 01 December 1999
• Docket Number: No. 990093.,990093.
• Citation: 1999 ND 220,602 N.W.2d 710
• Parties: Lloyd T. HUBER and Emma Huber, Plaintiffs and Appellants, v. OLIVER COUNTY, Defendant and Appellee.
• Court: North Dakota Supreme Court

602 N.W.2d 710

1999 ND 220

Lloyd T. HUBER and Emma Huber, Plaintiffs and Appellants, v. OLIVER COUNTY, Defendant and Appellee.

No. 990093.

Supreme Court of North Dakota.

December 1, 1999.

Albert A. Wolf, Wheeler Wolf, Bismarck, ND, for plaintiffs and appellants.

Charles S. Miller, Jr., Fleck, Mather & Strutz, Bismarck, ND, for defendant and appellee.

NEUMANN, Justice.

[¶ 1] Lloyd and Emma Huber appealed from a judgment and post judgment order dismissing their action against Oliver County for damages and injunctive relief related to the flooding of their farmland. We conclude the trial court did not err in instructing the jury on the County's act-of-God defense, and did not abuse its discretion in denying the Hubers injunctive relief or in awarding the County costs and disbursements. We affirm.

I

[¶ 2] The Hubers have owned a family farm in Oliver County since 1955, and have raised crops and livestock there with other family members. Otter Creek meanders on and off the Hubers' land, providing them with water for their livestock and irrigation opportunities for 40 acres of land adjacent to the creek. During the 1950s, Oliver County voters approved a plan to build a federal-aid farm-to-market road on the Hubers' land. In 1961, after the County failed in its attempt to move the road's location, see Huber v. Miller, 101 N.W.2d 136 (N.D.1960), the County and the Hubers entered into a contract granting the County a provisional qualified easement across the Hubers' land to construct the road. By building the road on the Hubers' property, the County could save expenses because crossings over Otter Creek would be limited to two, one at each end of a small oxbow in the creek. The contract called for installation of two culverts and a concrete barrier intended to force normal flows of water to continue along the oxbow. The contract also provided if the culverts and barrier were insufficient to keep the creek flowing in its natural course, the County would install another means of accomplishing this purpose at its own expense.

[¶ 3] The County built the road and installed the culverts and barrier system, but the system soon failed. The concrete barrier washed out and the water established its own channel down the west side of the road rather than crossing under the road and through the oxbow on the Hubers' land. Although the County installed rock in an attempt to keep the creek flowing in its natural course, the County was not successful in getting the water to flow through the oxbow on the Hubers' land.

[¶ 4] In 1989 the Hubers sued Oliver County alleging breach of the 1961 easement contract and seeking damages as well as specific performance. The trial court denied the Hubers' request for specific performance and granted summary judgment dismissal of the breach of contract action, ruling it was barred by the statute of limitations. In Huber v. Oliver County, 529 N.W.2d 179 (N.D.1995), this Court affirmed the denial of the Hubers' claim for specific performance because they had not shown their remedy at law through an action for damages was inadequate, but reversed and remanded for trial on the statute of limitations issue.

[¶ 5] After experiencing flood problems, the Hubers brought this action in 1996 seeking damages for the County's failure to construct a sufficient culvert system under the roadway to allow water to flow in its natural course onto and off their land as it had before the road was constructed. They alleged because of the insufficient culvert system, their farmstead received flood damage after a heavy summer rain in 1993 and after a heavy spring runoff in 1996. They also sought injunctive relief to require the County to install additional culverts to correct the problem so they would not continue to suffer flood damage in the future.

[¶ 6] Trials of the 1989 and the 1996 actions were consolidated. The claim for injunctive relief was tried to the court. Shortly before trial, the County agreed to construct an additional nine-foot culvert in the road, thereby doubling the amount of culvert capacity. The jury returned a verdict in the 1989 lawsuit which resulted in its dismissal because the action was barred by the statute of limitations. In the 1996 action for damages, the jury found the flooding on the Hubers' land was not caused by the County's road construction or culvert installations. The trial court also denied the Hubers' request for injunctive relief, concluding the Hubers have "an adequate remedy at law, and a multiplicity of suits would be unnecessary to address their claims...."

[¶ 7] The Hubers did not challenge the jury's finding on the statute of limitations issue in the 1989 action. However, the Hubers moved for a new trial in the 1996 action, challenging the jury instruction on the County's "act-of-God" defense and the denial of their request for injunctive relief. The Hubers also objected to taxation of costs and disbursements against them. The trial court denied the post-trial motions. The Hubers appealed.

II

[¶ 8] The Hubers contend the trial court's instruction on the County's act-of-God defense was erroneous because it did not adequately inform the jury of the applicable law. The trial court's instruction was based on NDJI-Civil 460, and provided:

Oliver County claims that the flooding in 1993 followed the second big rainfall event of that summer. Therefore, Oliver County contends, the flooding was proximately caused by "Acts of God" in the form of unprecedented and extraordinary rainfalls.

A rainfall that occurs seasonably and which is not of unprecedented magnitude should be regarded as ordinary and not an "Act of God." A helpful test of the character of a rainfall as ordinary, rather than extraordinary, is whether its occurrence and magnitude might reasonably have been anticipated, in the light of the known rainfall experience in the area.

Whether the rainfalls were unprecedented and extraordinary, and therefore "Acts of God," is a question of fact you must decide. If you find there were unprecedented and extraordinary rainfalls ("Acts of God") and that the injury, if any, suffered by the Hubers would have been suffered by reason of those "Acts of God" regardless of any acts of Oliver County, then Oliver County is not liable for such injury.

Oliver County has the burden of proving this "Act of God" defense.

[¶ 9] This Court has held to prevail on the act-of-God defense, the defendant must establish the act of God was the sole proximate cause of the damage, and if the act of God and the fault or negligence of the defendant combine to produce the injury, the defendant is still liable. See, e.g., North Shore, Inc. v. Wakefield, 542 N.W.2d 725, 729 (N.D.1996); Lang v. Wonnenberg, 455 N.W.2d 832, 836 (N.D.1990); Hoge v. Burleigh County Water Management Dist., 311 N.W.2d 23, 29 (N.D.1981); Dempsey v. City of Souris, 279 N.W.2d 418, 420 (N.D.1979); Frank v. County of Mercer, 186 N.W.2d 439, 443 (N.D.1971). The Hubers argue the trial court's failure to instruct the jury the act of God must have been the "sole" proximate cause of the damage to their land for the County to escape liability requires a new trial in this case because they presented evidence the County's negligence in constructing the culvert system contributed to their damages.

[¶ 10] Jury instructions must fairly and adequately inform the jury of the applicable law. Olson v. Griggs County, 491 N.W.2d 725, 729 (N.D.1992). A trial court is not required to instruct the jury in the exact language sought by a party if the court's instructions adequately and correctly inform the jury of the applicable law. Barnes v. Mitzel Builders, Inc., 526 N.W.2d 244, 247 (N.D.1995). On appeal, jury instructions must be viewed as a whole, and if they correctly advise the jury of the law, they are sufficient although parts of them, standing alone, may be erroneous and insufficient. Schuhmacher v. North Dakota Hospital Association, 528 N.W.2d 374, 377 (N.D.1995).

[¶ 11] Here, although the Hubers objected to the instruction, they did not specifically request the phrase "sole proximate cause" be used in the instruction. Moreover, the trial court instructed the jury the rainfalls had to be of such magnitude that the Hubers' damages "would have been suffered ... regardless of any acts of Oliver County...." This is synonymous with stating the act of God must have been the sole proximate cause of the Hubers' damages. See Frank, 186 N.W.2d at 446. We conclude the trial court's instructions adequately informed the jury of the applicable law.

III

[¶ 12] The Hubers contend the trial court erred in refusing to grant their request for injunctive relief requiring the County to install more than the one additional nine-foot culvert which the County agreed to install to alleviate further flood damage to their land in the future.

[¶ 13] The Hubers' argument is premised on N.D.C.C. §§ 24-03-06 and 24-03-08, which provided at the relevant time:

24-03-06. Method of construction of highway ditches. Any and all highways of any kind hereafter constructed or reconstructed by the department, any board of county commissioners, any board of township supervisors, their contractors, subcontractors or agents, or by any individual firm or corporation, must be so designed as to permit the waters running into such ditches to drain into coulees, rivers, and lakes according to the surface and terrain where such highway or highways are constructed in accordance with scientific highway construction and engineering so as to avoid the waters flowing into and accumulating in the ditches to overflow adjacent and adjoining lands. In the construction of highways, as herein provided, the natural flow and drainage of surface waters may not be obstructed, but such water must be permitted to follow the natural course according to the surface and terrain of the particular terrain.

24-03-08. Determinations of surface water flow and appropriate highway construction....