Roberts v. Jensen
| Decision Date | 30 July 2020 |
| Docket Number | Docket No. 46675 |
| Citation | 167 Idaho 838,477 P.3d 892 |
| Court | Idaho Supreme Court |
| Parties | Lora K. ROBERTS, an individual, Plaintiff-Appellant, v. Thomas JENSEN and Deanna Jensen, husband and wife, Defendants-Respondents. |
Barker Rosholt & Simpson LLP, Twin Falls, for appellant Lora K. Roberts. Travis Lee Thompson argued.
Holden, Kidwell, Hahn & Crapo, P.L.L.C., Idaho Falls, for respondents Thomas and Deanna Jensen. D. Andrew Rawlings argued.
This is a case involving a waste ditch that drained surface water from property owned by Lora Roberts (Roberts) through property owned by Thomas and Deanna Jensen (the Jensens). The ditch itself passed through a man-made culvert under a county road between the properties. The Jensens filled in the portion of the waste ditch located on their property in 2013. In February 2017, Roberts' property experienced significant flooding. The flooding damaged her home as well as horse feed stored in the barn. It also forced her to relocate her horses from her property.
Roberts filed an action against the Jensens, alleging trespass and nuisance, as well as seeking a declaratory judgment to establish that Roberts had an interest in the waste ditch on the Jensens' property as an easement on the basis that the ditch was an established natural servitude. After lengthy motion practice between the parties, the district court granted the Jensens' motion for summary judgment against Roberts, and denied Roberts' motion for summary judgment. Prior to rendering its ultimate decision, the district court struck portions of several affidavits presented by both Roberts and the Jensens, in particular the opinions of both parties' experts. The district court also held that the ditch on the Jensens' property was not a "natural servitude" because (1) the ditch was an "artificial channel," not a natural watercourse; and (2) notwithstanding the way Roberts' property had originally drained, the development of the county road and installation of the culvert obstructed this drainage, causing the periodic flooding. The district court dismissed the trespass claim because there was no intrusion or invasion by the Jensens onto Roberts' property. The district court also dismissed the nuisance claim because the flooding was not caused by a natural servitude, and therefore a nuisance action was not applicable. The district court then denied Roberts' request for a declaratory judgment. Roberts moved unsuccessfully for reconsideration, and her timely appeal followed. For the reasons below, we affirm the district court's order granting summary judgment against Roberts.
The Sunnyside Acres Subdivision was platted in Jerome County, Idaho, in 1978. The plat shows a ten-foot easement for a waste ditch entering the subdivision, cutting through Lots 4 and 5, across a proposed county road, and traversing through Lots 33, 34, and 35, before reaching a second county road. (An enlargement of the plat showing the parties' properties is attached to this opinion as Exhibit A.) The ditch easement evidently existed at the time the plat was recorded, having been reserved as a "temporary irrigation easement" for the benefit of a farm, known as the Van Beek Farm, northeast of the Sunnyside Acres Subdivision.1
There is further indication that the ditch flowed under the second county road, and then ended on the edge of a field in another farm. At least one affidavit attested that the water that drained from the ditch eventually reached the Snake River Canyon.
Both Roberts and the Jensens reside in the Sunnyside Acres Subdivision. Roberts purchased her property in 2001. She owns the property labeled Lot 5 on the plat. The Jensens purchased their property in May 2010. The Jensens own the property labeled Lot 35.
By the time Roberts purchased Lot 5 in 2001, the waste ditch on her property had been "largely obliterated by the horses that grazed on the property." According to Roberts, she "smoothed the ditch area out with [her] small tractor and horse arena groomer, and created a visible swale[.]" Roberts contends that this swale allowed "naturally occurring rainfall and snowmelt ... to pass from the properties above" hers. Only twice between 2001 and 2010 did flooding occur on Roberts' property. Roberts contends that flooding during these previous events never reached the barn, corrals, or the crawlspace of her home. These events were caused by melting snow and rainfall, and floodwater "remained until it overtopped Sunnyside Drive, and was then discharged and conveyed southwesterly through the ditch on" Lot 35. According to Roberts, the maximum depth of floodwater over Sunnyside Drive was about four inches.
When the Jensens bought Lot 35 in May 2010, the ditch still existed on their property. The ditch occasionally would flow with water "in the rare instances of a large storm or rapid snow melt." However, the Jensens contend "[t]here was never a regular flow of water through" the ditch. In June 2013, after consulting with the Jerome County Planning and Zoning Office, the Jensens filled in the ditch located on their property. The Jensens contend that in doing so they "did not increase the grade, gradient, elevation, or level of " their property, "or alter its grade[.]"
While the Jensens were filling in the ditch in June 2013, Roberts came to the Jensens' property to complain that the ditch was being filled. Roberts told the Jensens that they could not fill in the ditch. The Jensens refused to comply and finished filling the ditch. There is no indication from the record that there was any flooding between June 2013 and February 2017.
In February 2017, temperatures increased suddenly while there was still a significant amount of snow on the ground and while the ground was still frozen. As a result of the related precipitation and melting, severe flooding occurred throughout south central Idaho, triggering emergency declarations by the Idaho governor and the federal government.
Roberts' property was severely flooded during the events of February 2017. Water was unable to escape through the culvert under Sunnyside Drive and the ditch on the Jensens' property that had now been filled in. It pooled, flooding Roberts' barn, corrals, and the crawlspace of Roberts' home. The depth of water over Sunnyside Drive was at least eighteen inches deep, and spread along Sunnyside Drive "for a distance of approximately 200 feet." According to Roberts, water was unable to leave Roberts' property for almost two weeks until the ground began to thaw and could absorb the water. The flooding destroyed hay stored in Roberts' barn, and she was forced to remove her horses from the property.
On February 18, 2018, Roberts filed suit, alleging trespass and nuisance, and seeking damages and a declaratory judgment that Roberts had an easement across the Jensens' property. Her amended complaint was filed June 5, 2018, in which Roberts clarified that she was seeking a declaratory judgment establishing the validity of the natural servitude or easement on the Jensens' property. Roberts then filed a motion for summary judgment on June 22, 2018. She also filed affidavits from the following: Mark Dekruyf (Dekruyf), a friend of Roberts who attested to the flooding in 2017; Larry Bos (Bos), the son of a farmer who farmed the property that would become Sunnyside Acres; John Root, the land surveyor who prepared the plat for Sunnyside Acres; Dr. Charles Brockway (Brockway), an expert who reviewed a survey of the subdivision plat and the ditch easement area; Douglas Schwarz (Schwarz), the employee of an engineering firm who conducted the survey of the subdivision plat and ditch easement area; and herself. In particular, Brockway provided a drainage evaluation based on raw survey data and topographic ground contours, concluding that when the Jensens filled the ditch, they increased the elevation to which water needed to rise on Roberts' property before water would drain. This was modeled at various cubic feet per second (cfs), showing an increase in water elevation of between 0.27 feet and 0.89 feet. This model also estimated that the culvert was approximately 50% blocked. The Jensens opposed Roberts' motion for summary judgment, and filed a motion to strike the affidavits.
On July 30, 2018, the Jensens filed a cross-motion for summary judgment. Counsel for the Jensens also filed a declaration including several documents produced in discovery. In addition, the Jensens filed the declaration of their own expert, Dr. Ryan Christensen (Christensen). Roberts opposed the Jensens' motion for summary judgment, and filed a cross-motion to strike a portion of the declaration filed by counsel for the Jensens and the declaration of Christensen.
On August 27, 2018, the district court conducted a hearing on the pending motions. Roberts argued that the undisputed facts established trespass and nuisance and entitled her to declaratory relief establishing the natural servitude. Roberts argued that the ditch qualified as an easement, as acknowledged by the plat, and that Roberts' property was the dominant estate. Roberts also argued that the ditch was at the very least a natural servitude because it was a drainage for discharging surface water and wastewater from the basin.
In response, the Jensens asserted that the question of the case was "whether the waste ditch is a natural servitude or ... a typical ditch." The Jensens argued that a natural servitude did not exist anymore, if ever, because the ditch had been dug to drain water off further than the natural low point at the bottom of Roberts' property, making the ditch beyond this point "artificial." The Jensens contended that the requirements for a natural servitude were not met because the waste ditch was not a natural watercourse that discharged itself into another stream or body of water. The...
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