Wilson v. Ramacher

• Decision Date: 27 July 1984
• Docket Number: No. C4-82-1592,C4-82-1592
• Citation: 352 N.W.2d 389
• Parties: Robert WILSON, Appellant, v. Marvin E. RAMACHER, et al., Defendants, City of Lino Lakes, Respondent.
• Court: Minnesota Supreme Court

Page 389

352 N.W.2d 389

Robert WILSON, Appellant, v. Marvin E. RAMACHER, et al., Defendants City of Lino Lakes, Respondent.

No. C4-82-1592.

Supreme Court of Minnesota.

July 27, 1984.

Syllabus by the Court

1. As a matter of law, the defendant city has no liability to plaintiff for issuance of permits to downstream owners to put fill on their land.

2. The trial court correctly dismissed summarily plaintiff's claim against the city for negligently approving and accepting a plat and its public improvements on the grounds of discretionary immunity. Also, as a matter of law, plaintiff failed to show a factual issue on any negligence by the city.

3. The common-law reasonable use doctrine does not apply to a municipality's diversion of surface waters as part of a public drainage system.

4. Plaintiff's complaint sufficiently gives notice of a claim for inverse condemnation.

Richard J. Gabriel, St. Paul, for appellant.

L.T. Merrigan, Minneapolis, for respondent.

Considered and decided by the court en banc without oral argument.

SIMONETT, Justice.

We affirm the trial court's summary dismissal of claims by a landowner against a municipality for negligent and unreasonable diversion of surface waters onto the landowner's property. We reverse and remand, however, to allow the landowner to proceed with a claim for inverse condemnation.

Plaintiff-appellant Robert Wilson owns a 10-acre tract in the City of Lino Lakes. Immediately north of his tract is Ulmer's Rice Lake Addition, a newly platted residential area now containing some 34 homes. Immediately south of plaintiff Wilson's tract is Golden's Rice Lake Terrace Addition, also an improved, platted area. The land throughout this entire area slopes downward from north to south so that the natural flow of surface waters is from Ulmer's Rice Lake Addition southerly across plaintiff's land, and continuing southerly across Golden's Rice Lake Terrace.

In 1979, plaintiff Wilson commenced this lawsuit, claiming that his land, once dry, was now wet, soggy, and unusable. He sued the owners and developers of the "upstream" tract, alleging that they were negligent in developing Ulmer's Rice Lake Addition, thereby causing surface water runoff to be channeled onto his land. Plaintiff Wilson also sued the owners of lots south of plaintiff's property, alleging that they had put fill on their properties, thus raising the elevation and blocking the natural flow of surface waters off plaintiff's property. In addition, the engineering firm that designed and installed the surface water drainage system for the defendant developers of Ulmer's Rice Lake Addition was made a defendant. Finally, plaintiff Wilson sued the City of Lino Lakes.

This appeal concerns only the plaintiff's claims against the city. Plaintiff's complaint alleges that the city (1) was negligent in issuing permits allowing the "downstream" owners to raise the height of their land, thereby blocking the natural flow of surface waters off plaintiff's property; (2) was negligent "in platting, planning, approving and developing" Ulmer's Rice Lake Addition so that surface waters were diverted "downstream" onto plaintiff's property; and (3) was liable in trespass for diverting surface waters onto his property, this diversion being unreasonable under the reasonable use doctrine. The complaint does not allege that the city was negligent in the operation or maintenance of the storm sewer system. Plaintiff claims his land "has become flooded and unfit for use" and he asks for money damages and injunction of a nuisance.

The pertinent facts are these. Plaintiff Wilson purchased his 10 acres in 1966 for $600. Plaintiff claims the land was then dry. The defendant city claims it then was, and continues to be, low-lying, swampy wetland. Concededly, plaintiff's land has always been in the path of surface water runoff from the higher land to the north flowing southerly down to Rice Lake. In 1969, without a building permit, plaintiff put in some fill, sunk 10-foot pilings and built a garage, a shop, and some sleeping quarters on his property.

In the spring of 1977, the city, after various meetings and a public hearing, approved the platting of Ulmer's Rice Lake Addition. The plat provides for a surface water drainage system which apparently includes three drainage easements that flow into a holding pond adjacent to the north boundary line of plaintiff's tract. The drainage system and the subdivision streets were built by the defendant developers and, along with the plat, were accepted by the city. Plaintiff Wilson claims the Ulmer property, before its development, had a rapid percolation rate and absorbed nearly all of its surface waters, but, with the subdivision development, some 85% of the surface waters now run onto plaintiff's property.

The downstream property, Golden's Rice Lake Terrace, was platted and developed in 1946, long before plaintiff Wilson bought his 10-acre tract. Sometime after 1969, the defendant downstream owners in Rice Lake Terrace added fill to their property, allegedly causing surface waters to back up on plaintiff's land. Plaintiff claims this fill was added under permits issued by the city.

The defendant city moved for summary judgment, arguing governmental immunity, and, alternatively, no negligence on its part as a matter of law and no diversion of surface waters by any unreasonable use. On October 19, 1982, the trial court granted defendant city's motion for summary judgment, ruling that the city's actions were within the legislative grant of governmental immunity from liability for discretionary acts. ¹ Plaintiff Wilson appeals. ² On appeal, for the first time, Wilson also argues that if the city's acts were discretionary, immunity was waived by the city's procurement of liability insurance. ³

1. Plaintiff-appellant Wilson first claims the trial court erred in holding as a matter of law that the city was not liable to plaintiff for issuance of any permits to the downstream owners to put fill on their land. The trial court's ruling was correct. See Anderson v. City of Minneapolis, 287 Minn. 287, 178 N.W.2d 215 (1970) (issuance of permit a discretionary municipal function).

2. Plaintiff-appellant next contends the trial court erred in ruling as a matter of law that the city was not liable for negligence in approving and accepting the Ulmer Rice Lake plat and the subdivision improvements. We affirm the trial court's ruling. The trial court reviewed the decisionmaking process undertaken by the city council, involving meetings and a public hearing and the balancing of complex and competing factors, and concluded that the council's acts involved planning and policy judgments that qualified as immune, discretionary acts. We agree. In Cairl v. State, 323 N.W.2d 20, 23 (Minn.1982), we discussed the public policy considerations behind the grant of discretionary immunity. Some services to the public cannot be effectively accomplished if performance of these services is chilled by concern for second-guessing by a tort litigant, who, we might add, here had the opportunity to raise any claims of abuse of municipal discretion in the policymaking process at the open meetings and the public hearings. We hold that the defendant City of Lino Lakes, on this record, had discretionary, governmental immunity in accepting and approving the Ulmer Rice Lake plat and improvements.

3. We do not consider the issue of whether the procurement of liability insurance by the city was a waiver of discretionary immunity, because plaintiff-appellant failed to present the issue to the trial court. We observe, however, that on defendant's motion for summary judgment plaintiff offered no facts suggesting negligence on the part of the city. See Erickson v. General United Life Insurance Co., 256 N.W.2d 255, 259 (Minn.1977) (summary judgment is proper when nonmoving party fails to provide the court with specific facts indicating that there is a genuine issue of fact). For plaintiff to show simply the acceptance of the improvements and the flooding of his property raises no inference of a breach of a duty owed to the landowner to use reasonable care. While the trial court disposed of the summary judgment motion by finding discretionary immunity even assuming negligence, we further hold that summary judgment for the city on the negligence claim was also proper on the alternative ground urged by the city that as a matter of law there was no showing of any...