Lang v. Wonnenberg, 890171

• Decision Date: 25 April 1990
• Docket Number: No. 890171,890171
• Citation: 455 N.W.2d 832
• Parties: Bill LANG and Luella Lang, husband and wife; Chuck Lang and Brenda Lang, husband and wife; and Ed Schlenker and Hazel Schlenker, husband and wife, Plaintiffs and Appellees, v. Lloyd WONNENBERG, Defendant, Third-Party Plaintiff and Appellant, v. BOONE TOWNSHIP OF SHERIDAN COUNTY, North Dakota, a public corporation, Third-Party Defendant and Appellee. Civ.
• Court: North Dakota Supreme Court

Page 832

455 N.W.2d 832

Bill LANG and Luella Lang, husband and wife; Chuck Lang and Brenda Lang, husband and wife; and Ed Schlenker and Hazel Schlenker, husband and wife, Plaintiffs and Appellees, v. Lloyd WONNENBERG, Defendant, Third-Party Plaintiff and Appellant, v. BOONE TOWNSHIP OF SHERIDAN COUNTY, North Dakota, a public

corporation, Third-Party Defendant and Appellee.

Civ. No. 890171.

Supreme Court of North Dakota.

April 25, 1990.

Kelsch, Kelsch, Ruff & Austin, Mandan, for plaintiffs and appellees; argued by William C. Kelsch.

Pearce & Durick, Bismarck, for third-party defendant and appellee; argued by Jerome C. Kettleson.

Zuger, Kirmis, Bolinske & Smith, Bismarck, for defendant, third-party plaintiff and appellant; argued by Murray G. Sagsveen.

VANDE WALLE, Justice.

Lloyd Wonnenberg appealed from a district court judgment which awarded Bill and Luella Lang [Bill Lang], Chuck and Brenda Lang [Chuck Lang], and Ed and Hazel Schlenker [Schlenker] approximately $260,000 in damages caused by the unlawful draining of ponds and sloughs on Wonnenberg's property; ordered Wonnenberg to close all improperly opened drains and to restore them to their pre-drain storage capacity; and dismissed Wonnenberg's third-party complaint against Boone Township. We affirm in part, reverse in part, and remand for further proceedings.

Wonnenberg, the Langs, and Schlenker own farmland located in Boone Township in Sheridan County. Wonnenberg owns four quarter-sections of land in the township, three of which are adjacent to and south of a section-line road that is maintained by Boone Township. A large slough, referred to at trial as the "big slough," is located on Wonnenberg's land on the south side of the township road. Bill Lang owns farmland located north and downstream of Wonnenberg's land. Chuck Lang owns a 640-acre farm, some of which is located north and downstream of Wonnenberg's land with the rest located west of it. Schlenker owns farmland located west of Wonnenberg's property and rents this land to Bill Lang.

In 1979 Wonnenberg decided to drain the ponds and sloughs in three of his quarter-sections into the big slough. He planned to have the township road act as a dam to confine the waters to his own land. Wonnenberg hired a contractor to do the work, but he did not seek a permit to drain from the Sheridan County Water Resource Board, did not contact downstream landowners, did not consult with an engineer or other professional, and did not calculate the water storage capacity of the wetlands he planned to drain. As part of the drainage project, the contractor dug a ditch six-feet deep, five to six-feet wide at the bottom, 100-feet wide at the top, and 200 to 300-feet long. Unknown to Wonnenberg, the ditch breached a divide between two major drain basins--the Sheyenne River basin which flows to Hudson Bay, Canada, and the James River basin, which flows to the Gulf of Mexico. Wonnenberg drained approximately 350 of the 480 acres in the three quarter sections, reducing his wetland surface acreage from 45.2 acres to 8.4 acres.

In 1980 the big slough flooded over the township road, as it had every spring in which substantial runoff occurred. The road was covered with two to three feet of water for a distance of 200 to 300 feet and the Boone Township Board had the road barricaded against passage. The Board held a special meeting, at which Wonnenberg acknowledged that his draining, coupled with heavier than usual August and September precipitation, damaged the township road. The Board and Wonnenberg agreed that Wonnenberg would pay 80 percent of the cost to raise the road so that it would act as a dam and keep the water on his land. During the summer of 1981 Boone Township had Sheridan County personnel raise the road along the north side of the big slough approximately three feet. Neither Wonnenberg nor Boone Township were aware that a plugged culvert was located under the township road in the area of the big slough.

The following two years, 1982 and 1983, were extremely wet years in the area and the runoff was substantial. The water from the drained wetlands flowed into the big slough and was contained by the raised township road. The trial court found that as the water in the big slough rose near the top of the road, it backed up and flowed in a westerly direction flooding portions of property owned by Chuck Lang and Schlenker. In early summer 1983, standing water in the big slough forced open the plugged culvert, releasing a substantial quantity of water. The trial court found that this water caused extensive flooding on downstream farmlands owned by Bill Lang and Chuck Lang. Boone Township had the culvert closed and, since then, the Langs' property north of the township road has not been flooded. The trial court found, however, that the previously-released water increased the size of a large natural wetland from 28.1 acres to 46.9 acres, and caused the land to remain wet and unusable through the drought of 1988. In addition, the trial court found that from 1984 through 1987, the big slough filled with water to the roadtop level and excess water again traveled to the west flooding portions of property owned by Chuck Lang and Schlenker.

The Langs and Schlenker commenced this action against Wonnenberg in August 1987 seeking damages for injury to their farmlands caused by Wonnenberg's draining in violation of either § 61-01-22, N.D.C.C. [currently codified at § 61-32-03, N.D.C.C.], which, under the facts of this case, required a permit to drain, or the reasonable-use rule, and seeking injunctive relief to require closing of the drains. Wonnenberg brought a third-party action against Boone Township alleging that it "carelessly and negligently failed to improve the roadway sufficiently to act as a dam as the parties agreed...."

After a bench trial, the trial court found Wonnenberg liable to the Langs and Schlenker for violating § 61-01-22. The court found that Boone Township was not negligent and dismissed Wonnenberg's third-party complaint. The court found that the plaintiffs' lands were permanently damaged and awarded Bill Lang $30,880, Chuck Lang $39,585, and Schlenker $27,495 for the diminution in value of their land. Additionally, the trial court awarded Bill Lang $53,961.10 and Chuck Lang $89,594.16 for loss of use of their property during the years 1983 through 1988. The court also found that Wonnenberg acted maliciously and oppressively and awarded the plaintiffs $10,000 in exemplary damages. The court further ordered Wonnenberg to close all the drains he opened in 1979 and restore them to their pre-drain storage capacity and to pay the cost of changing the character of the township road as a dam through the installation of a working culvert.

On appeal, Wonnenberg raises numerous issues with regard to liability and damages. Most of his assertions constitute attacks on the trial court's findings of fact. A trial court's findings of fact will not be set aside on appeal unless clearly erroneous, with due regard given to the opportunity of the trial court to judge the credibility of the witnesses. Rule 52(a), N.D.R.Civ.P. A finding of fact is clearly erroneous when, although there is some evidence to support it, the reviewing court on the entire record is left with a definite and firm conviction that a mistake has been made. KBM, Inc. v. MacKichan, 438 N.W.2d 181 (N.D.1989). A finding of fact that comports with one of two permissible views of the evidence is not clearly erroneous. Vogel v. Pardon, 444 N.W.2d 348 (N.D.1989). While we may have viewed the facts differently if we had been the trier of fact, we do not reverse the trial court's findings for that reason alone. Russell Land Co. v. Mandan Chrysler-Plymouth, 377 N.W.2d 549 (N.D.1985).

LIABILITY

Wonnenberg asserts that the trial court erroneously determined that he was liable to the plaintiffs because their property would have flooded without the additional water drained from his land. He contends that, because 1982 and 1983 were very wet years, it was the unusually high rainfall and runoff that caused the flooding rather than the "insignificant" additional runoff which resulted from his drainage. Wonnenberg, in effect, challenges the trial court's finding of proximate cause and its rejection of his act-of-God defense. Whether Wonnenberg's drainage was the proximate cause of the damage to the plaintiffs' property is a question of fact. Martin v. Weckerly, 364 N.W.2d 93 (N.D.1985).

In order for Wonnenberg to prevail on the act-of-God defense, he had the burden of establishing by a preponderance of the evidence that the rainfall, runoff, and flooding (1) were unprecedented and extraordinary; (2) could not have been reasonably anticipated; (3) could not have been reasonably provided against; and (4) were the sole proximate cause of the damage to the plaintiffs' property. Hoge v. Burleigh County Water Management Dist., 311 N.W.2d 23 (N.D.1981). If an act of God and the negligence of the defendant combine to produce the injury, the defendant is liable. Dempsey v. City of Souris, 279 N.W.2d 418 (N.D.1979).

The record supports the trial court's finding that the 1982 and 1983 snowmelt, rain, and resulting runoff were not unpredictable or extraordinary. These years were not the wettest on record. Wet cycles, as the trial court reasoned, are foreseeable, should be reasonably anticipated, and will result in more runoff than in dry years. Wonnenberg's drainage was substantial, eliminating approximately 198 acre-inches of storage capacity on his property. After Wonnenberg's drainage, temporary wetlands in the plaintiffs' property which had a history of drying out early each season became permanent wetlands until the drought of 1988. We conclude that the trial court did not err in rejecting Wonnenberg's act-of-God defense.

Wonnenberg also attacks the trial court's finding that the water impounded behind the township road flowed west causing damage to property...