Romey v. Landers

Decision Date15 September 1986
Docket NumberNo. 14991,14991
Citation392 N.W.2d 415
PartiesOliver M. ROMEY, Petitioner and Appellee, and Water Rights Division, State of South Dakota, Intervenor and Appellee, v. Tom LANDERS and A & T Cattle Company, Respondents and Appellants.
CourtSouth Dakota Supreme Court

Jane M. Farrell, Patrick M. Ginsbach, on brief, of Farrell, Farrell & Ginsbach, Hot Springs, for petitioner and appellee.

Daniel J. Doyle, Asst. Atty. Gen., Mark V. Meierhenry, on brief, Atty. Gen., Pierre, for intervenor and appellee.

Thomas W. Stanton, of Costello, Porter, Hill, Nelson, Heisterkamp & Bushnell, Rapid City, for respondents and appellants.

Joseph M. Butler, Michael M. Hickey, on brief, of Bangs, McCullen, Butler, Foye & Simmons, Rapid City, for amicus curiae, South Dakota Stockgrowers Ass'n and South Dakota Farm Bureau Federation.



This is an appeal from a circuit court Judgment which affirmed a decision of the South Dakota Water Management Board (Board) requiring Tom Landers and A & T Cattle Company (Landers) to remove 35 earthen dams constructed on Black Banks Creek. We affirm.


Black Banks Creek is located in Fall River County, South Dakota. It lies southwest of Oelrichs, South Dakota, and it flows into Horsehead Creek near U.S. Highway 385, about six miles north of the Nebraska border. On Landers' property, Black Banks Creek consists of two meandering branches which flow west to east. These branches leave Landers' property and eventually merge on or near Oliver M. Romey's (Romey) adjacent property. The water in Black Banks Creek comes from runoff and snowmelt; thus, it is not continuously filled with water throughout the year.

Romey has owned his land since 1956 and he depends on the creek for irrigation and livestock watering. In 1961, Romey applied to appropriate water for irrigation and his application was approved.

In 1977, Landers purchased his property and began constructing a series of 35 low head earthen dams, dikes, and levees on both branches of Black Banks Creek. On the south branch, 15 dams were constructed and two other dams have existed there since 1941. On the north branch, 20 such dams were constructed. All dams lie within two miles of the Landers/Romey border and most exist in sets of four to six dams with all dams in a set within several hundred feet of each other. These dams are constructed so that when the water level rises, water is forced around the end or ends of the dam through wide, grassy areas which serve as spillways and thus the dams spread water across some of Landers' pasture before it reenters the creek. There was testimony from experts and ranchers that this system of dams, dikes, and levees constituted a water spreader or irrigation system.

In 1981, Black Banks Creek did not flow through Romey's land and there was insufficient water for normal livestock needs and no water for irrigation. As a result, Romey was forced to sell some cattle. According to the testimony, some 47 mixed cows and calves were sold in April 1981, and Romey was forced to haul water to his remaining cows. During this time, Landers had water impounded upstream and the thirsty cattle could smell the water, causing Romey to reinforce his fences. In 1982, there was no water in the creek on Romey's property until the middle of May. As a result, Romey had no alfalfa seed crop that year.

In February 1983, Romey filed with the Board a petition for declaratory ruling pursuant to ARSD 74:02:01:46, which also sought an order requiring the removal of the dams Landers built. A hearing was scheduled before the Board on February 24, 1983. On February 22, 1983, Landers requested a continuance in a conference telephone call with the Board members participating, but the continuance was denied, one of the reasons being that a delay would prejudice Romey. On February 23, 1983, one day before the hearing, Landers filed a summons and complaint with the circuit court seeking a declaratory judgment. On February 24, 1983, the Board ordered that a hearing be held before a Hearing Examiner, in exchange for Landers filing motions to dismiss his Summons and Complaint and to dissolve a Temporary Restraining Order. It appears that Landers consented to a dismissal, for a hearing was held before a Hearing Examiner on March 22, 1983, which concluded on March 24, 1983. Landers stipulated at this hearing that the Hearing Examiner could examine the dikes and dams which were vitally in question. Landers fully participated in this administrative hearing.

Adverse parties submitted findings of facts and conclusions of law. Thereafter, the Hearing Examiner filed proposed findings of facts, conclusions of law, and a final decision. In April 1984, after procedural events not dispositive of this appeal, the Board adopted the Examiner's findings and issued a final decision that all dams which Landers constructed on Black Banks Creek be removed, except the two dams existing since 1941.

Landers appealed to the circuit court asserting five issues for consideration. The circuit court affirmed the Board's decision and ordered Landers to remove the dams he had constructed.

From the circuit court's determination, Landers now appeals. One of his principal arguments is that the Board, before which he appeared and fully participated, did not have jurisdiction because it exceeded its jurisdiction and imposed coercive relief.


The Water Management Board is authorized to regulate and control the development, conservation, and allocation of the right to South Dakota's waters. See SDCL ch. 46-1; SDCL 46-2-9; SDCL 46-2-11; Matter of South Dakota Water Management Board, 351 N.W.2d 119 (S.D.1984); and Matter of South Lincoln Rural Water System, 295 N.W.2d 743 (S.D.1980). Pursuant to SDCL 1-26-15, the Board was required to provide rules for "declaratory rulings as to the applicability of any statutory provision or of any rule or order of the agency." ARSD 74:02:01:46 provides procedures for such declaratory rulings, i.e., it simply effectuates the law as declared by the State Legislature.

Landers contends, however, that this action was beyond the scope of the Board's jurisdiction because it involves disputed facts and seeks coercive relief. * With Landers' contention, we disagree.

Controversies and disputed questions of fact do not preclude a case from declaratory procedures. Greene v. Wiese, 75 S.D. 515, 69 N.W.2d 325 (1955). Declaratory and coercive relief may both be granted upon proper grounds. 22 Am.Jur.2d Declaratory Judgments Sec. 100 (1965). See also, D. Dobbs, Handbook on the Law of Remedies, Sec. 2.1 (1973). SDCL 1-26-25 provides that the Board may direct the taking of action, and under SDCL 1-40-19 and SDCL 1-32-1(10), the Board may order action or the abatement of action. Whether or not the Board had the independent authority to enforce its order (a separate consideration), as the footnote reveals the circuit court questioned, need not be addressed for the circuit court most assuredly has the authority to enforce its own order requiring removal of the dams.

Landers further contends that the circuit court had exclusive jurisdiction of this matter because SDCL 46-10-4.1 deprives the Board of such jurisdiction.

SDCL 46-10-4.1 provides, inter alia, that "any person may bring an action for the purpose of determining conflicting water rights or rights to use water." In addressing Landers' contention, we first note that SDCL 46-10-4.1 states that a person may bring an action in circuit court. The statute does not, however, require it to be brought in circuit court. Second, we note that in other areas of the law, we have recognized that courts and administrative bodies can each have jurisdiction over the same type of dispute. See Mordhorst v. Egert, 88 S.D. 527, 223 N.W.2d 501 (1974). Under the circumstances here, both the Board and the circuit court could statutorily entertain this matter and we reject Landers' assertion that the trial court had exclusive jurisdiction. It is noted that Romey sought coercive relief after the Water Resources engineer informed Landers to halt the construction of dams; that Landers indicated he would; but that Landers continued to construct additional dams, dikes, and levees. Landers did not have a water permit nor had he filed an application for a water permit to appropriate water for irrigation for any of the dams, dikes, and levees constructed by him on either branch of Black Banks Creek. It is understandable that Romey and State officials would seek redress before the Water Management Board of this State to stop, correct, and alleviate this type of conduct. We note further that the two original dams on the south branch of the Black Banks Creek were permitted to exist to the benefit of Landers. This Board attempted to be fair and to achieve the ends which could be fairly said to effectuate the policy of the State Legislature, which State Legislature created the administrative agency and defined its duties.


South Dakota Constitution Article II divides the governmental powers into three distinct departments; the Legislative, the Executive, and the Judicial. The powers and duties of the Judicial branch are prescribed in South Dakota Constitution Article V. Landers contends the separation of powers doctrine is violated because the Board, part of the Executive branch, is performing judicial functions. With this contention, we disagree.

"Quasi judicial powers involving judgment and discretion are often, and must necessarily be, exercised by administrative and executive bodies and officers." Champion v. Bd. of County Comm'rs of Minnehaha County, 5 Dak. 416, 429, 41 N.W. 739, 742 (1889) (emphasis in original). See also, Nelson v. City of Miller, 83 S.D. 611, 163 N.W.2d 533 (1968), and Bandy v. Mickelson, 73 S.D. 485, 44 N.W.2d 341 (1950). SDCL 1-32-1(10) defines "quasi-judicial function" a...

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