Young v. Huffman, 9675

• Decision Date: 06 June 1958
• Docket Number: No. 9675,9675
• Citation: 77 S.D. 254,90 N.W.2d 401
• Parties: Sarah E. YOUNG, Plaintiff and Appellant, v. David W. HUFFMAN and Leora Huffman, Defendants and Respondents.
• Court: South Dakota Supreme Court

Page 401

90 N.W.2d 401

77 S.D. 254

Sarah E. YOUNG, Plaintiff and Appellant, v. David W. HUFFMAN and Leora Huffman, Defendants and Respondents.

No. 9675.

Supreme Court of South Dakota.

June 6, 1958.

Thos. G. Wall, Sturgis, for plaintiff-appellant.

Roswell Bottum, Rapid City, for defendants and respondents.

ROBERTS, Judge.

Plaintiff Sarah E. Young brought this action seeking compensation for damages done to her dwelling house which allegedly resulted from the filling in and elevating the land of the defendants so as to impede the natural flow of surface water and to cause the flooding of the adjoining land of the plaintiff. After hearing on the issues made by the pleadings and viewing the premises, the trial court made findings in favor of the defendants and rendered judgment dismissing the action. Plaintiff's motion for new trial was overruled and she appealed assigning the insufficiency of the evidence to sustain the findings and the judgment.

The evidence shows that plaintiff was the owner of Block 14 of Mahoney Addition to Rapid City and that defendant Leora Huffman was the owner of Block 19 which adjoins plaintiff's property on the south. Block 20 referred to in the record as the Windham property borders the Huffman property on the east. A natural watercourse across plaintiff's property extends in a southeasterly direction into Block 20 and then turns in a southwesterly direction across the Huffman property. An embankment on the Windham property a few feet from and along the west boundary was some time prior to 1951 constructed across the watercourse for the purpose of impounding water. Defendants hauled a number of loads of dirt on their property and by use of the dirt filled up depressions and leveled their land to make it suitable for residential purposes. If is this change in the surface of the property of defendants of which plaintiff complains. Plaintiff claims that the alteration and filling in caused surface water to collect and overflow in such volume as to enter her dwelling house and cause damage.

In this jurisdiction as applied to rural lands we have adopted what is known as the civil law rule. Thompson v. Andrews, 39 S.D. 477, 165 N.W. 9; Kougl v. Curry, 73 S.D. 427, 44 N.W.2d 114, 22 A.L.R.2d 1039. This rule places a natural easement or servitude upon the lower land for the drainage of surface water in its natural course and the natural flow of the water cannot be obstructed by the servient owner to the detriment of the dominant owner. Johnson v. Metropolitan Life Ins. Co., 71 S.D. 155, 22 N.W.2d 737; La Fleur v. Kolda, 71 S.D. 162, 22 N.W.2d 741; Kougl v. Curry, supra. Other jurisdictions have adopted the common-law rule which treats surface water as a common enemy and denies the right of natural easement or servitude for the flow of surface water and the owner of the lower land can repel surface water from the higher land without liability. In some jurisdictions which ordinarily follow the civil law rule, it is recognized that in the case of urban property changes and alterations in the surface are essential to the enjoyment of the property and that the owner may make changes in the surface of a city or town lot essential to its enjoyment regardless of the effect on the flow of surface waters provided he was not been negligent. 93 C.J.S. Waters Sec. 114b; see also annotation in 12 A.L.R.2d 1338.

Applying the civil law rule, the trial court concluded that plaintiff failed to establish a cause of action. Counsel for defendants urges that the facts in the case would in any event under the urban rule require an affirmance of the judgment. No survey had been made and evidence as to differences in...