In re Drainage Permit 11-81 and 12-142, 010919 SDSC, 28525-a-SRJ

Docket Nº:28525-a-SRJ
Opinion Judge:JENSEN, JUSTICE
Party Name:IN THE MATTER OF THE DRAINAGE PERMIT 11-81 and 12-142, JASON MCAREAVEY, APPLICANT, MARK DESCHEPPER, Appellant, v. THE BOARD OF COMMISSIONERS, MINNEHAHA COUNTY, SOUTH DAKOTA Respondent and Appellee, and JASON MCAREAVEY and VERNON MCAREAVEY, Appellees. MARK DESCHEPPER, Plaintiff and Appellant, v. VERNON R. MCAREAVEY and THE BOARD OF COMMISSIONERS...
Attorney:A. J. SWANSON Canton, South Dakota Attorney for appellant and plaintiff-appellant. JAMES A. POWER JAMES E. MOORE of Woods, Fuller, Shultz & Smith P.C. Sioux Falls, South Dakota Attorneys for respondent- appellee, Board of Commissioners, Minnehaha County. JUSTIN T. CLARKE VINCE M. ROCHE of Davenpo...
Judge Panel:GILBERTSON, Chief Justice, and KERN, Justice, and PARDY, Circuit Court Judge, concur. PARDY, Circuit Court Judge, sitting for SALTER, Justice, disqualified.
Case Date:January 09, 2019
Court:Supreme Court of South Dakota
 
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2019 S.D. 3

IN THE MATTER OF THE DRAINAGE PERMIT 11-81 and 12-142, JASON MCAREAVEY, APPLICANT, MARK DESCHEPPER, Appellant,

v.

THE BOARD OF COMMISSIONERS, MINNEHAHA COUNTY, SOUTH DAKOTA Respondent and Appellee,

and

JASON MCAREAVEY and VERNON MCAREAVEY, Appellees.

MARK DESCHEPPER, Plaintiff and Appellant,

v.

VERNON R. MCAREAVEY and THE BOARD OF COMMISSIONERS, MINNEHAHA COUNTY, SOUTH DAKOTA Defendants and Appellees.

No. 28525-a-SRJ

Supreme Court of South Dakota

January 9, 2019

ARGUED ON AUGUST 28, 2018

APPEAL FROM THE CIRCUIT COURT OF THE SECOND JUDICIAL CIRCUIT MINNEHAHA COUNTY, SOUTH DAKOTA THE HONORABLE MARK SALTER Judge

A. J. SWANSON Canton, South Dakota Attorney for appellant and plaintiff-appellant.

JAMES A. POWER JAMES E. MOORE of Woods, Fuller, Shultz & Smith P.C. Sioux Falls, South Dakota Attorneys for respondent- appellee, Board of Commissioners, Minnehaha County.

JUSTIN T. CLARKE VINCE M. ROCHE of Davenport, Evans, Hurwitz & Smith, LLP Sioux Falls, South Dakota Attorneys for appellees, Jason McAreavey and Vernon McAreavey.

JENSEN, JUSTICE

[¶1.] Mark DeSchepper appeals the circuit court's determination that the Minnehaha County Board of Commissioners (County) properly granted two drainage permits to Jason and Vernon McAreavey (McAreaveys). DeSchepper also claims that the court erred in granting summary judgment dismissing his claims for damages, injunctive relief, and abatement of nuisance against the McAreaveys and the County. We affirm.

Background

[¶2.] The McAreaveys and DeSchepper own land in and around Twin Lake, a small lake located in Clear Lake Township in rural Minnehaha County. Twin Lake was originally comprised of north and south bodies of water, but the two are now joined into one contiguous lake. Twin Lake lies mostly on Section 17 of Clear Lake Township and measures approximately 341 acres. Smaller portions of Twin Lake and its 979-acre watershed extend onto Sections 16, 18, 19, 20, and 21. DeSchepper owns and farms land on the southwest quarter of Section 17. The McAreaveys own and farm the northwest quarter of Section 17 and the northwest quarter of Section 20 on the southern edge of Twin Lake. The State owns the east half of Section 17 where Twin Lake is predominantly located.

[¶3.] The McAreaveys installed drain tile on their property in 2008 and 2009. The drain tile installed by the McAreaveys consisted of four, six-inch pipes designed to drain water from their crop land into or in the direction of Twin Lake. The tiles are perforated tubes buried approximately three feet below the ground's surface. All the tile, including the outlets, lie entirely on the McAreaveys' land: three on the southern edge of Twin Lake, and the fourth on the northern portion of Twin Lake. The northern outlet is submerged by Twin Lake, which has engulfed a portion of the McAreaveys' land along Twin Lake. The other three outlets have also at times been submerged by Twin Lake.

[¶4.] Before constructing the 2008 tiling, the McAreaveys applied to the County for a drainage permit. This application was approved by a County administrative official without prior notice to DeSchepper. The McAreaveys installed the 2009 tiling without requesting a permit from the County. The McAreaveys subsequently sought approval of the 2009 tiling, but their application was denied by the County.

[¶5.] In 2011 and 2012, the McAreaveys submitted two additional drainage permit applications to the County: ADP 11-81 and ADP 12-142. ADP 11-81 sought permission to expand the 2008 and 2009 drain tile by adding a system of smaller tile to run lateral to the previously installed tile. ADP 12-142 sought approval of all the 2008 and 2009 tiling, including the still unapproved 2009 tiling. DeSchepper was given notice of both applications and objected to the permit requests. Both applications were considered and approved by the County at brief public hearings on August 9, 2011 and September 12, 2012, respectively.

[¶6.] DeSchepper separately appealed the County's approvals of the McAreaveys' two drainage permits to the circuit court. DeSchepper also filed an action for declaratory judgment against the McAreaveys and the County, alleging that the drainage permits issued by the County for the 2008 tiling were null and void due to a of lack of notice. DeSchepper's also sought injunctive relief, claims for nuisance and trespass against the McAreaveys, and an inverse condemnation claim against the County. DeSchepper's actions were consolidated before the circuit court.

[¶7.] The McAreaveys and the County moved for summary judgment on all of DeSchepper's claims, except the drainage permit appeals. The circuit court dismissed DeSchepper's claim for damages explaining that DeSchepper could not prove legal causation absent expert testimony showing that the McAreaveys' drain tile was a substantial factor in causing Twin Lake to rise. The court also determined that the request for a declaratory judgment was rendered moot by the County's approval of ADP 12-142 following proper notice and hearing. The circuit court determined that despite the lack of causation evidence to support damages, summary judgment was premature on the equitable claims for injunctive relief and nuisance abatement.

[¶8.] In July 2016, the circuit court heard DeSchepper's appeals of ADP 11-81 and ADP 12-142 at a trial de novo. The principal issue was whether the McAreaveys' drain tile had increased the amount of water drained into Twin Lake. Both parties offered testimony during the trial.

[¶9.] DeSchepper offered testimony from geologist Timothy Kenyon. Kenyon testified that the Twin Lake basin has a non-permeable floor, so there is no outlet for any additional water drained into Twin Lake from the McAreaveys' land. Kenyon believed that the installation of drain tile on the McAreaveys' land resulted in a net increase of water flowing into Twin Lake, despite acknowledging that he had not attempted to measure the amount of water flowing into Twin Lake from the McAreaveys' drain tile and could not quantify the flow. Kenyon was unable to provide an opinion whether the drain tile was a substantial factor in causing the level of Twin Lake to rise.

[¶10.] The McAreaveys and the County presented testimony from Dr. Gary Sands, an agricultural engineer. Dr. Sands testified, to a reasonable degree of scientific probability, that the McAreaveys' drain tile did not increase the water yield into Twin Lake. Dr. Sands made this determination using the water balance equation, which calculates hydrologic balance and considers factors such as precipitation, evaporation, plant transpiration (the amount of moisture carried from plant roots, through the plant, and released into the atmosphere), surface runoff, changes in soil moisture, deep seepage, and any artificial drainage. Dr. Sands noted that even though there was a possibility that the McAreaveys' tile increased water flow into Twin Lake, the more probable scenario was that the tile actually decreased ¶ow into the lake.

[¶11.] Both parties presented lay testimony on the question whether the McAreaveys' drain tile had increased the water draining into Twin Lake. DeSchepper testified that he believed the drainage tile system was increasing the amount of water draining into Twin Lake but conceded that he could not quantify any increase. DeSchepper also acknowledged that (1) heavy precipitation in 2011 made it difficult to account for the impact of the tile during that time, (2) Twin Lake's water levels started to rise in 1999 before the McAreaveys installed the drain tile, and (3) Twin Lake's water levels had decreased since 2011. Jason McAreavey (Jason) claimed that the drain tile had not increased the drainage into Twin Lake. He noted that since installing the tile, he was farming more of his land adjacent to Twin Lake because the lake had receded six feet since its peak in 2011. Jason also testified that it was contrary to his interests to increase the amount of water draining into Twin Lake, as that would have an adverse impact on his land bordering the Lake.

[¶12.] Following the trial, the circuit court entered a memorandum opinion affirming the County's approval of the McAreaveys' permit applications. The circuit court found that the evidence did not show that the McAreaveys' drain tile increased the amount of water draining into Twin Lake. The court also found that...

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