Johnson v. Agerbeck

• Decision Date: 08 June 1956
• Docket Number: No. 36611,36611
• Parties: Edward W. JOHNSON and Esther Johnson, Respondents, v. Soren AGERBECK and Russell Agerbeck, Appellants.
• Court: Minnesota Supreme Court

Page 539

77 N.W.2d 539

247 Minn. 432

Edward W. JOHNSON and Esther Johnson, Respondents, v. Soren AGERBECK and Russell Agerbeck, Appellants.

No. 36611.

Supreme Court of Minnesota.

June 8, 1956.

Syllabus by the Court

1. In effecting a reasonable use of his land for a legitimate purpose, a landowner, acting in good faith, may drain his land of surface waters and cast them as a burden upon the land of another, or adjacent landowner, although such drainage carries with it some waters which would otherwise have never gone that way, but would have remained on the land until they were absorbed by the soil or evaporated in the air, providing the landowner gives heed to existing and surrounding circumstances, and, if

(a) There is a reasonable necessity for such drainage;

(b) If reasonable care be taken to avoid unnecessary injury to the land receiving the burden;

(c) If the utility or benefit accruing to the land drained reasonably outweighs the gravity of the harm resulting to the land receiving the burden; and

(d) If, where practicable, it is accomplished by reasonably improving and aiding the normal and natural system of drainage according to its reasonable carrying capacity, or if, in the absence of a practicable natural drain, a reasonable and feasible artificial drainage system is adopted.

2. In applying the rule as to what is reasonable use in connection with the disposition of surface waters, all questions of fact must be resolved according to the special circumstances of each particular case.

3. Opinions of engineering experts on land surveys and drainage problems on which a layman can have little or no knowledge, based on exact measurements of elevation, which concern matters of science and specialized art, are conclusive on the questions involved.

4. Although the expert engineers' opinion that the digging would not increase the flow of water would not be conclusive of the broad question whether there was unreasonable use of the land, nevertheless, that opinion, when coupled with the engineers' survey; its measurements and elevations; and all of the other evidence, indicates that the whole of the evidence even if it be taken most favorable to the prevailing party does not support the findings and the conclusions of the court below nor sustain the injunctive relief provided therein.

Erickson & Zierke, Fairmont, for appellants.

Seifert, Johnson & Hand, Fairmont, for respondents.

NELSON, Justice.

This is an appeal from an order denying defendants' motion for amended findings or for a new trial. The court below found plaintiffs entitled to a permanent injunction and thereby entitled to a mandatory injunction of the court compelling defendants to forthwith fill up a ditch on their land and on the adjacent public right-of-way. The matter was submitted to the court on all issues.

The questions involved in the main are whether the evidence sustains a finding that defendants unreasonably caused surface waters to flow in increased volume onto the plaintiffs' land contrary to the rule applicable to the disposition of surface waters in this state, based upon undisputed engineering and survey data made a part of the record; and whether the evidence sustains the findings in plaintiffs' favor and the issuance of a mandatory injunction.

It appears that the plaintiffs are the owners of the S 1/2 of the NE 1/4 and the NE 1/4 of the NE 1/4 sec. 33, T. 101 N., R. 33 W., fifth principal meridian, Martin county, Minnesota, and the defendants are owners and tenants of the SW 1/4 and the S 1/2 of the NW 1/4 sec. 33, T. 101 N., R. 33, in Martin county, Minnesota. Defendants' land is located just west and across a north-south township road from the land owned by the plaintiffs. The contour of the land belonging to the litigants is such that during heavy rainfall the natural surface waters flow from a slough on the westerly portion of defendants' land easterly through a culvert underneath the surface of and traversing the north-south township road between the lands of the parties, in an easterly direction onto the land of the plaintiffs. A shallow swale or ditch runs from the slough on defendants' land in an easterly direction to the culvert in the road and from the east side of the culvert over the plaintiffs' land in a northeasterly direction. The location of this culvert is over the area of a public tile ditch system known and established as judicial ditch No. 10. The flow line through the culvert is higher than the natural surface of the land on either side in the area involved. It appears that it is only during wet periods that the surface waters build up sufficiently to pass through the culvert, the general surface waters otherwise draining through the tile ditch system.

The plaintiffs had been owners and occupants of the land for some 54 years until shortly before the present litigation. The defendant Soren Agerbeck had purchased the defendants' land in 1932, had occupied it himself until 5 or 6 years ago, after which time his son took over as a tenant. When the Agerbeck land was purchased, an old bull or open ditch ran easterly on the land toward the culvert. It was thereafter plowed shut except for a distance of about 20 feet westerly from the culvert, the defendants claiming that this was necessary in order to move machinery across and better farm the land and to permit the water in wet seasons to flow through the culvert. This left a natural swale or water course through the defendants' land. There was testimony that defendants had left a furrow in plowing along the swale on their land. At times, due to the contour of the land, silt and dirt washed into the ditch area or swale near the culvert. This the defendants for a number of years removed from the swale in order to keep the approach to the culvert open and to facilitate farming operations. The moving and scraping of this gathered dirt and silt extended through the defendants' fence onto the road right-of-way and into the road ditch to the west of the culvert. The plaintiffs claim that the defendants' scraping and digging for the purpose of removing this dirt and silt from time to time went below the natural surface depth and was the cause of damage to their land by reason of causing surface waters to precipitate and flow upon their land in increased volume from the west to the east and in an unreasonable manner. An overall examination of the testimony and the exhibits definitely establishes that only a limited and shallow natural waterway or swale existed. It is plain from the evidence that any alleged losses sustained by the plaintiff due to overflow of surface waters had their inception in wet years or in periods of heavy rainfall and that very little crops if any were lost directly east of the culvert upon the plaintiffs' land.

Plaintiff makes the claim that an increased flow of surface waters due to scraping and digging in the ditch or swale on defendants' land to the west of the culvert was the direct cause of a crop loss to him of 3 acres of corn in one of the preceding years; that top soil was washed away; and that the flow of surface waters in amounts larger than normal washed away top soil and left ditches upon his land. This appeared to be in an area to the south and some distance from the swale. His evidence was mostly confined to the years beginning in 1951 and running through part of 1953. The testimony indicates that 1951 and 1953 were wet, in fact years of heavy rainfall, and that surface waters gathered in more than the normal volume of other years.

The evidence indicates that the defendants lost upwards of 30 acres to farming in the slough area to the west of the plaintiffs' land in the wet seasons when heavy rains fell and abnormal surface waters were encountered. Plaintiffs introduced no engineering testimony and no maps. All testimony with reference to swales, ditches, and alleged scraping and digging by defendants on their own land in proximity of the culvert to the west was produced by way of observation and mere estimates as to depth and width and general contour on the part of the plaintiffs and members of the township board which appeared as witnesses in their behalf. The pictures introduced as exhibits clearly fail to indicate anything beyond a shallow natural waterway or swale. Defendant furnished engineering and surveyor testimony and map surveys showing measurements and elevations for a considerable distance to the east and the west of the road and culvert area.

It appears from the elevations taken that on plaintiffs' land between the easterly flow line of the culvert and the easterly low swale elevation taken on plaintiffs' land, the elevation is 2.72 feet from east to west, the said flow line of the culvert being 99.72 and the easterly elevation 97.0. The culvert through the road furnishes the high point of elevation in the area.

On defendants' land, the engineering survey which the defendants introduced clearly indicates that from the edge of the field where slough water was likely to be found in wet periods to flow line of the culvert to the east toward plaintiffs' land, there was an elevation of 3.2 feet. In fact the measurements disclose that the elevation of the slough area, at the edge of the field on the fence line was at a lower elevation than the point on the plaintiffs' land along the swale area equidistant from the culvert.

The engineering and surveyors' measurements and elevations taken beginning at the bottom edge of the culvert on the west side thereof fixing that elevation at 100, proceeding westerly through the low surface area and swale on the defendants' land toward the slough, as presented by maps and survey discloses the following data: First elevation at bottom of ditch or swale 50 feet west of road center on defendants' land reads 98.1; proceeding westerly, away from the culvert, in the low swale area at approximately equidistant points the low swale elevations read 97.6, 97.3, 97.1...