Spaeth v. City of Plymouth

• Decision Date: 10 February 1984
• Docket Number: Nos. CO-82-1332,C4-83-761,s. CO-82-1332
• Parties: John M. SPAETH, Respondent, v. The CITY OF PLYMOUTH, Appellant.
• Court: Minnesota Supreme Court

Page 815

344 N.W.2d 815

John M. SPAETH, Respondent, v. The CITY OF PLYMOUTH, Appellant.

Nos. CO-82-1332, C4-83-761.

Supreme Court of Minnesota.

Feb. 10, 1984.

Syllabus by the Court

1. The City has taken real property of the plaintiff in violation of U.S. Const., amend. V, and Minn. Const., art. 1, § 13, by permanently flooding it for use as a municipal storm water holding pond.

2. The trial court properly issued a writ of mandamus compelling defendant to commence eminent domain proceedings. Thus, plaintiff is entitled to an award of attorneys' and experts' fees pursuant to Minn.Stat. § 117.045 (1982) under the circumstances of this case.

3. Pre-litigation expenses are recoverable under Minn.Stat. § 117.045 when such expenses were necessary for the prosecution of the action.

4. A claim for attorneys' and experts' fees under Minn.Stat. § 117.045 raises a matter independent of the merits of the action. Thus, a trial court has continuing jurisdiction to issue an order awarding such fees under that statute, even after a party has perfected its appeal from the merits of the action.

LeFevere, Lefler, Kennedy, O'Brien & Drawz, John G. Kressel, Herbert P. Lefler, III, Lorraine S. Clugg, Minneapolis, for appellant.

Stacker, Ravich & Simon, Eileen M. Roberts, Olson Gunn & Seran, Ltd., Harold H. Sheff, Minneapolis, for respondent.

Heard, considered and decided by the court en banc.

SCOTT, Justice.

Plaintiff John M. Spaeth brought this action against the City of Plymouth ("City") alleging that it has taken without compensation a portion of his property for use as a storm water holding pond in violation of U.S. Const., amend. V, and Minn. Const., art. 1, § 13. After a trial without a jury, the district court granted Spaeth's petition for a writ of mandamus and ordered the City to commence eminent domain proceedings. It also ruled that Spaeth was entitled to attorneys' and experts' fees pursuant to Minn.Stat. § 117.045 and ordered Spaeth to submit his petition for reimbursement of those expenses within 40 days. Before the trial court determined the amount of the fees, the city appealed (C0-82-1332), claiming there has been no taking and, even if there has been a taking, Spaeth is not entitled to expenses pursuant to section 117.045 in the circumstances presented. The trial court subsequently awarded Spaeth attorneys' and experts' fees in the amount of $66,158.12. The city then appealed from entry of that judgment (C4-83-761), challenging both the trial court's continuing jurisdiction to determine the amount of the fees and the amount of the fees awarded. On July 12, 1983, this court ordered consolidation of C0-82-1332 and C4-83-761. We now affirm both judgments.

Since the mid-1960's, the City of Plymouth has been developing rapidly. In 1973 the City adopted a Storm Drainage Plan "to provide an adequate and economical means of conveying storm water runoff through the [City]." In creating such a plan, a municipality has several design options ranging from the more expensive underground storm sewer system to a less expensive system of holding ponds and drainage easements. In furtherance of its storm water management goals, the City planned to utilize a combination of underground and surface systems to provide the most efficient and economical system. Ponds, swamps and lowlands throughout the City were thus designated as "ponding areas."

In November of 1974, plaintiff John Spaeth purchased approximately 41 acres of undeveloped land in the City of Plymouth, intending to develop it in the future. A portion of that property is lowland area. According to the 1973 plan, the low areas of Spaeth's land and other adjoining lands were designated as ponding area "GL-P2". Spaeth, who was a member of the Plymouth City Council when the 1973 plan was adopted, knew that a portion of his property had been designated as a ponding area, but he expected to be compensated in light of certain provisions of the 1973 plan. That plan "assumed" that the City "would have to purchase ponding areas and obtain flooding easements for the area surrounding the ponds." The plan generally estimated the cost for ponds and easements at $2,000 per acre. The projected cost of GL-P2 was $176,000, including costs in addition to land acquisition. Plaintiff, however, did not contemplate monetary compensation when he purchased the property; rather, he contemplated authorization to develop the upper area of his land at higher densities than allowed under the City's guiding plan.

When Spaeth purchased the property, surface water drained through the low area in the southeast corner of his property, then through a ditch ("old ditch") located on a marsh area of property to the south and eventually to Gleason Lake. The old ditch essentially followed a natural watercourse, but it was deeper than the natural depression. Timothy Skoglund, a registered engineer, opined that, when Spaeth purchased the property in 1974, the drainage of Spaeth's low land was controlled by the outlet elevation of the old ditch which was at 989 feet. In contrast, the lowest point on Spaeth's land is at elevation 990.4 feet.

The instant controversy was sparked in 1978 when the developer of land to the south of Spaeth's eliminated the old ditch and created a new ditch with different drainage characteristics. Witnesses familiar with Spaeth's property testified about water conditions existing there before the elimination of the old ditch. According to them, surface water accumulated on the low area in the spring due to melting snow and rain, but that ditch drained the water by June and the lowland area existed as a dry meadow thereafter. One witness did testify that water would also accumulate whenever there was a heavy rain of 6 to 8 inches and that it would take approximately one week to "dry out pretty good."

Sometime prior to 1978, Northland Mortgage Company ("Northland") acquired the land south of Spaeth's on which the old ditch was located. Northland subsequently platted that property for residential development as the Maple Creek addition ("Maple Creek"). With respect to the grading of that site, Peter Molinaro, a project engineer, testified that "the City's Storm Sewer Plan [required Northland] to provide a pond [GL-P2] to the north." To design the grading plan, project engineers for Northland met with the City and its consultant to get "the elevations and the flows from that pond." Northland eventually submitted a grading plan to the City which it referred to its consulting engineers "to review the plan for conformance with the storm drainage plan." The 1973 Storm Drainage Plan required the control elevations of GL-P2 to be at elevation 995 feet and a 100-year flood elevation at 998. ¹

Northland began developing the site in 1978. In the latter part of 1978, it filled in the old ditch and built a new ditch according to the grading plan. Northland installed an earth berm in the new ditch. The top of the berm was at an elevation of approximately 998 feet. It then intended to install an overflow structure north of that berm to control the water elevation of the ponding area at 995 feet. According to the plan, water overflowing that control structure would drain through a pipe at the bottom of the berm at a controlled rate. That control structure was never installed.

Before Northland could install the control structure, Spaeth complained to the City that his property was being flooded. On April 11, 1979, the City investigated the matter and found the water level to be at elevation 994.45 feet. Fred Moore, Director of Public Works, decided to lower the berm to the contour of the ditch immediately downstream of the berm. In April or May of 1979, City work crews lowered the berm to an elevation of approximately 993 feet. In conjunction with that action, the contour of the ditch upstream of the berm was lowered to the level of the marshy area to the north. The City's actions somewhat lowered the water level on Spaeth's land.

Since that time, the outlet elevation of the new ditch has been controlled at approximately 993 feet. Skoglund gave his opinion that the new ditch thus raised normal water levels "from the essentially water-free condition somewhere below elevation 991 to a normal water level now of elevation 993." The evidence at trial tended to show that standing water has occupied the center and southeast area of Spaeth's lowland since that time as a result. Kent Lokkesmoe, a regional hydrologist employed by the Department of Natural Resources, testified that he estimated the ordinary high water level of GL-P2 to be at elevation 993.7 feet as of April 7, 1982. ² Spaeth's lowland area has also undergone physical changes, marked by the dying off of trees and the increasing presence of aquatic vegetation such as cattails. The land also presently provides a habitat for species of animals associated with freshwater marshes, including ducks, geese and muskrat. According to Spaeth, those species were not present before 1978.

After leaving his position as a city council member in 1979, Spaeth began to work on plans to develop his property. The development was to be known as Lillie Pond. When Spaeth submitted a development proposal to the City in early 1980, it discovered that the contour maps upon which it relied to design GL-P2 were erroneous. Those maps showed the elevations on Spaeth's property to be approximately two to four feet higher than the actual elevations of that property. For example, the erroneous maps showed the lowest point on Spaeth's land to be at elevation 994 feet, while it was actually 990.4 feet. Prior to adopting any changes, the City was advised by its consulting engineer in a letter dated September 24, 1980, that the outlet elevation of the marsh was "somewhat below elevation 991" before the creation of the Maple Creek Development. In that same letter, the City was further advised of the following alternatives with respect to revising the specifications...