827 N.W.2d 871
S.D.2013Background
- In 1994 Brandt granted a 200-foot drainage easement across his Sila Subdivision land to Pennington County.
- In 1996 Pennington County repaired Clarkson Road abutting Brandt’s Lot 3, after which silt began accumulating in Lot 2’s canyon within the easement.
- The silt accumulation occurred sporadically with runoff from melting snow or rainstorms.
- Brandt provided written notice of damages to the County in May 2009.
- Brandt filed suit in late 2010 asserting nuisance, constructive taking, trespass, and unlawful taking.
- The trial court granted summary judgment in April 2012, holding no continuing tort and that the statute of limitations had run.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the County’s conduct constitutes a continuing tort tolling the statute of limitations. | Brandt contends the runoff/erosion is a continuing tort. | County argues there is no continuing tort since the road repair was a discrete act. | No continuing tort; limitations time ran. |
| Whether the 180-day notice and accrual rules bar Brandt’s claims given the alleged continuing effects. | Brandt asserts timely notice should apply due to continuing effects. | County asserts notice requirements and accrual defeat the claim. | Notice and accrual barred claims; judgment affirmed. |
Key Cases Cited
- Holland v. City of Geddes, 610 N.W.2d 816 (S.D. 2000) (defines continuing tort elements and tolling)
- Brishky v. State, 479 N.W.2d 489 (S.D. 1991) (discusses continuing tort standards)
- In re Kindle, 509 N.W.2d 278 (S.D. 1993) (notice requirements against public entities)
- Finck v. City of Tea, 443 N.W.2d 632 (S.D. 1989) (statutory notice framework for public entity claims)
- Cooper v. James, 627 N.W.2d 784 (S.D. 2001) (summary judgment standard; accrual guidance)
- Jacobson v. Leisinger, 746 N.W.2d 739 (S.D. 2008) (statutory limitations and accrual considerations)