Winterton v. Elverson, 15048

• Decision Date: 04 June 1986
• Docket Number: No. 15048,15048
• Parties: Ordell A. WINTERTON and Madeline Winterton, Plaintiffs and Appellees, v. Stanley K. ELVERSON, Defendant and Appellant.
• Court: South Dakota Supreme Court

Page 633

389 N.W.2d 633

Ordell A. WINTERTON and Madeline Winterton, Plaintiffs and Appellees, v. Stanley K. ELVERSON, Defendant and Appellant.

No. 15048.

Supreme Court of South Dakota.

Argued March 18, 1986.

Decided June 4, 1986.

Lawrence L. Piersol, Davenport, Evans, Hurwitz & Smith, Sioux Falls, for plaintiffs and appellees; Rick W. Orr, Souix Falls, on brief.

Timothy J. Nimick, Woods, Fuller, Shultz & Smith, Sioux Falls, for defendant and appellant; J.B. Lammers, Lammers, Lammers, Kleibacker & Casey, Madison, on brief.

SABERS, Justice.

This is an appeal from the trial court's award of damages, injunction, and prejudgment interest for the discharge of water from defendant's drainage tile upon plaintiff's agricultural land. We affirm in part, reverse in part and remand.

Statement of Facts

Appellees Ordell A. and Madeline Winterton, (Winterton), have lived on and farmed the Southwest Quarter of Section 25, Logan Township, Minnehaha County, South Dakota, since 1951. Appellant Stanley K. Elverson, (Elverson), is an adjacent landowner whose agricultural property is located to the northeast of the Winterton's land. A county road separates the property of the parties. Elverson's land is dominant, or higher than the Winterton's property.

Prior to 1975, Elverson's land would naturally drain surface water into a natural waterway onto Winterton's land after a heavy rain or during the spring runoff. This drainage occurred sporadically and never prevented Winterton from farming his land. Additionally, the rate of flow of the water kept it moving across Winterton's property so that it would not accumulate or stand for more than a short period of time. Thereafter, it would evaporate or be absorbed into the soil.

In the fall of 1975, Elverson installed a tile drainage system upon his property to enhance its productivity and to reduce erosion. The system drained only surface water and discharged it into the natural drainage waterway. Elverson asserts that the volume of surface water drained was not increased by the installation of the system. However, the tile drainage system caused a continuous and even flow of surface water to drain at a much slower rate onto Winterton's land. The water stayed on his land rather than flowing over or through it. As a result, Winterton claims that approximately three to four acres of his land remain wet and untillable throughout most of the year, that seven additional acres suffered reduced productivity, and that he has difficulty controlling weeds on the portion of his land directly affected by the tile.

The trial court found that Elverson increased the natural burden to the servient land by changing the manner of the natural drainage to Winterton's detriment and awarded damages for lost productivity with prejudgment interest, and prohibited Elverson from maintaining and using the drainage system.

Claims of the Parties

On appeal, Elverson argues that the trial court misapplied the law to the facts; that the evidence was insufficient to support the damage award; and that injunctive relief and prejudgment interest were improperly granted.

Issue

The key issue is:

WHETHER A DOMINANT LANDOWNER IS LIABLE IN DAMAGES TO A SERVIENT LANDOWNER FOR DISCHARGING SURFACE WATERS INTO A NATURAL WATERCOURSE ALL ON HIS OWN LAND, WHERE THE VOLUME REMAINS THE SAME, AND ONLY THE MANNER OF FLOW IS CHANGED FROM OCCASIONAL AND FORCEFUL TO REGULATED AND CONTINUOUS.

SDCL 46A-10A-70, (formerly SDCL 46A-10-31), codifies the civil law rule and states, among other things, that owners of land may drain the land in the general course of natural drainage through the construction of open or covered drains which discharge the water into any natural watercourse, and if such drainage is wholly upon an owner's land, he is not liable in damages to any person.

The civil law rule recognizes that lower agricultural property is burdened with an easement under which the dominant, or upper property owner may discharge surface water over the servient estate through natural watercourses. Thompson v. Andrews, 39 S.D. 477, 485, 165 N.W. 9, 12 (1917); Johnson v. Metropolitan Life Ins. Co., 71 S.D. 155, 157-158, 22 N.W.2d 737, 739 (1946); Gross v. Conn. Mut. Life Ins. Co., 361 N.W.2d 259, 266 (S.D.1985). However, the principles set forth in Thompson and its progeny qualify the civil law rule inasmuch as it is impermissible for a dominant landowner to collect surface waters, and then cast them upon the servient estate in "unusual or unnatural quantities." Thompson, 39 S.D. at 492, 165 N.W. at 14; Johnson, 71 S.D. at 158; 22 N.W.2d at 739; Gross, 361 N.W.2d at 267. Moreover, the civil law rule is conditioned upon the fact that the drainage must be accomplished without unreasonable injury to the servient estate. Thompson, 39 S.D. 489, 165 N.W. at 13. Thus, the upper owner may not transfer the burdens imposed by nature on his land to that of the lower owner. LaFleur v. Kolda, 71 S.D. 162, 167, 22 N.W.2d 741, 744 (1946).

In Feistner v. Swenson, 368 N.W.2d 621 (S.D.1985), we wrote that drainage rights of a dominant landowner must be exercised reasonably even though the surface water is discharged into a natural watercourse. Id. at 623. We further stated that, "... surface water cannot be gathered together and cast in a body on the property of the lower owner ... so as to affect that neighbor's land in some other way than the way in which it has been affected." Id. (quoting from Gross, supra.)

With these principles in mind, we turn to appellant's arguments. Elverson emphasizes that the surface waters from his land drained into a natural waterway in accordance with SDCL 46A-10-31, (now SDCL 46A-10A-70), and that the total flow of surface water drained was not increased by the installation of the tile system.

However, prior to installation of the tiling system, Winterton was not prevented from farming all of his land despite the sporadic draining from Elverson's property. The evidence indicates that the surface waters previously flowed over Winterton's property and were absorbed into the soil within two or three days.

After the installation of the drainage system, the record shows that the continuous and slower flow of surface waters caused approximately four acres of Winterton's land to remain wet for most of the year and rendered it untillable. Moreover, the system caused an additional seven acres to suffer reduced productivity and promoted a weed problem on Winterton's land. Therefore, even if Elverson's tiling system did not increase the total volume of surface waters drained, the evidence supports the conclusion that Elverson is draining surface waters and casting them upon Winterton's property in "unnatural or unusual quantities."

In LaFleur, supra, we held that a dominant property owner could not drain a landlocked basin onto the servient property even though the drains followed and emptied into a natural waterway. Id. 71 S.D. at 167, 22 N.W.2d at 744. The LaFleur opinion quoted extensively from Thompson v. Andrews, supra, as follows:

[E]very person who acquires lands normally fitted for cultivation should have the right to render them permanently fitted therefor if he can do so without injustice to another; therefore one who acquired lands, over which a watercourse passes through ... [should] permit ... drainage of such upper lands through such watercourse conditioned only that such drainage be accomplished without unreasonable injury to his land.

LaFleur, 71 S.D. 167, 22 N.W.2d at 743. In this case, we note that the "reasonableness" of Elverson's conduct relative to the injury to Winterton's property was a question of fact for the trial court's determination. See: Feistner, 368 N.W.2d at 624.

The scope of this court's review is limited to the question of whether the trial court's findings were "clearly erroneous." Thus, we do not look to substitute our judgment for that of the trial court, but rather to determine whether, after reviewing all of the evidence, the appellate court is left with a definite and firm conviction that a mistake has been committed. Gross, 361 N.W.2d at 266.

The trial court found that Elverson had increased the natural burden to Winterton's land by changing the manner of the natural drainage. What used to be an occasional, but forceful discharge of surface waters is now a regulated, but continuous flow. Furthermore, the surface waters that used to flow through Winterton's property, or accumulate for short periods of time and then evaporate, no longer do so.

In Johnson, supra, we held that even in the reasonable use of his land, an upper landowner is not allowed to artificially collect surface waters and discharge them all at one time to the detriment of the lower landowner. Id. 71 S.D. at 158, 22 N.W.2d at 739. This is true even though no more water is collected than would have naturally flowed upon the property in a diffused condition. The trial court found this reasoning applicable and stated "that those purchasing or acquiring land should expect and be required to accept it subject to burdens of natural drainage, but at the same time, the upper landowner should not be able to increase the natural burden of the lower estate."

In holding that Elverson had increased the natural burden to Winterton's detriment, the trial court specifically found that as a result of the installation of the tile, water does not flow over the real property of the Winterton's, but rather sits on their real property, and saturates it so that the land in question cannot be farmed. (emphasis added.) In Gross, supra, we stated that:

In upholding the civil law rule in Johnson v. Metropolitan Life Ins. Co., this Court took special note of the language in Thompson v. Andrews, indicating that the rule allows discharge of surface waters "over" and not "on" the land of another. (citations omitted.)

Id. 361 N.W.2d at 266. Therefore, a dominant landowner may only cast surface water "over" and not "on" the servient...