904 N.W.2d 502
S.D.2017Background
- In 1949 SDOT built Highway 11 across the Spring Creek Tributary and installed two 48-inch culverts and one 24-inch culvert; State maintained the highway.
- Landowners live in a closed sub-basin west of Highway 11 drained only by the 24-inch culvert; the twin 48-inch culverts and ditch block separate the sub-basin from the larger watershed.
- A 2009 DOT hydraulic study (using FEMA data) concluded the twin 48-inch culverts would pond at flows of about 275 cfs (an eight-year event) and could overtop the ditch block and flood the sub-basin; the 24-inch culvert can only pass ~40 cfs.
- After a 2010 resurfacing (culvert joints repaired and culverts reset slightly lower), heavy rains on July 29–30, 2010 caused flooding that damaged Landowners’ properties.
- Landowners sued State and City claiming inverse condemnation (tort claims were later dismissed); court bifurcated liability and damages; State’s cross-claim against City for contribution was permitted but later dismissed; court found State liable and a jury awarded permanent damages to Landowners.
- On appeal the State challenged sovereign-immunity limits, causation/foreseeability, entitlement to contribution from the City, and whether the State acquired a drainage easement.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether sovereign immunity bars the Landowners’ claims | Landowners: inverse condemnation under Art. VI §13 abrogates sovereign immunity; tort claims were dismissed so only constitutional claim remains | State: claims arise from highway design/engineering (discretionary acts) and thus are barred by sovereign immunity | Held: Sovereign immunity does not bar Article VI §13 inverse-condemnation claims (Rupert principle applies) |
| Whether State’s construction caused compensable damaging under Art. VI §13 (causation/foreseeability) | Landowners: Highway 11 obstructed natural drainage; DOT knew or should have known eight-year events would pond and overtop, causing flooding limited to their sub-basin; expert modeling supports but-for and foreseeable causal link | State: court erred on technical facts; other supervening causes (urbanization, rare rain) and only but-for causation shown; foreseeability must be judged at time of 1949 construction | Held: Court’s factual findings (culverts inadequate; State knew/should have known risk; but-for and proximate/foreseeable cause) were not clearly erroneous — liability affirmed |
| Whether State may seek contribution/indemnity from City after Landowners settled | State: Joint Tortfeasor’s Act (and contribution principles) allow apportionment and offset for City’s fault | Landowners: claim is constitutional inverse condemnation, not tort; statutory contribution applies only to tort-feasors; State failed to prove City’s causal contribution | Held: Statutory Joint Tortfeasor’s Act does not apply to inverse condemnation; court also found State failed to prove City’s causal contribution; cross-claim dismissal affirmed |
| Whether State has or should be granted a drainage easement over Landowners’ property after permanent damages awarded | State: if damages are permanent, it has effectively acquired a right to flood and should obtain a permanent drainage easement (or have award offset) | Landowners: easement was never pled, described, valued, or litigated; trial court refused broad easement language | Held: Although permanent damages imply the State has the right to flood to the extent proven, the State failed to define or prove scope/valuation of an easement; res judicata will bar future identical claims but no easement was entered now |
Key Cases Cited
- Rupert v. City of Rapid City, 827 N.W.2d 55 (S.D. 2013) (Article VI §13 claims abrogate sovereign immunity and require situation-specific causation analysis)
- Heezen v. Aurora County, 157 N.W.2d 26 (S.D. 1968) (permanent damages for recurring flooding imply right to permanently flood to the extent proven; injunction + permanent damages inconsistent)
- Krier v. Dell Rapids Township, 709 N.W.2d 841 (S.D. 2006) (consequential-damages rule: recovery requires injury peculiar to plaintiff, not shared by public)
- Ark. Game & Fish Comm’n v. United States, 568 U.S. 23 (U.S. 2012) (takings jurisprudence requires context-specific inquiry; recurring flooding can give rise to takings)
- Smith v. Charles Mix County, 182 N.W.2d 223 (S.D. 1970) (government may not gather or divert waters in unnatural quantities to cast upon lower lands; such acts can constitute compensable taking)
- Hurley v. State, 143 N.W.2d 722 (S.D. 1966) (constitutional takings claims provide independent remedy; legislative consent not required)
- Bauman v. Ross, 167 U.S. 548 (U.S. 1897) (just compensation measured by actual loss; owner entitled to value of what was deprived, no more)