922 N.W.2d 263
S.D.2019Background
- Landowners DeSchepper and the McAreaveys own parcels around Twin Lake in Minnehaha County; the McAreaveys installed underground drain tile (2008–2009) on their land draining toward Twin Lake.
- The County approved an initial permit administratively for 2008 tile (without DeSchepper notice); 2009 tile was installed without prior permit and later denied; later permits ADP 11-81 and ADP 12-142 (covering the 2008–2009 work and later lateral tile) were noticed to DeSchepper and approved after hearings.
- DeSchepper appealed the County approvals and filed separate claims for declaratory relief, damages (nuisance, trespass, inverse condemnation), and injunctive relief/abatement against the McAreaveys and County; proceedings were consolidated.
- At de novo trial the central factual/legal question was whether the McAreaveys’ tile increased water yield into Twin Lake (thereby causing flooding to DeSchepper). Expert testimony conflicted: DeSchepper’s geologist said tile increased flow (but could not quantify or say it was a substantial factor); defendants’ agricultural engineer used water-balance analysis and opined tile did not increase yield.
- The circuit court affirmed the County’s approvals (finding the tile followed natural drainage and did not increase drainage into Twin Lake) and granted summary judgment dismissing DeSchepper’s claims for damages and, after trial, granted summary judgment dismissing injunctive relief/nuisance claims; Supreme Court affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Applicability of civil law drainage rule to underground drain tile | Civil law rule doesn’t apply to subsurface tile; Twin Lake not an established natural watercourse | Statutory civil-law regime includes covered/closed drains and applies where drainage follows natural course to lake | Civil law rule applies; statutes and precedent treat covered/closed drains (including tile) as within the rule and Twin Lake lies on the natural drainage course |
| County bias/conflict in approving ADP 12-142 | County reversed prior denial to fix procedural error and avoid liability, creating bias/conflict | County acted regularly, were presumed objective; DeSchepper offered no evidence of actual bias or self-interest | No reversible bias; DeSchepper failed to overcome presumption of impartiality |
| Need for expert testimony to prove causation for damages | Magner shows lay testimony can suffice; expert not always required | Complex hydrologic/geologic causation for a 341-acre lake in a 979-acre watershed requires expert proof | Expert evidence was necessary here; lay testimony insufficient and DeSchepper’s expert could not establish substantial-factor causation, so damages claim properly dismissed |
| Injunctive relief / nuisance abatement after permits affirmed | Permit approval doesn’t automatically preclude equitable relief if nuisance exists | SDCL 21-10-2 and affirmed permits bar nuisance claims; evidence failed to show tile caused lake rise | Summary judgment for defendants proper: permits affirmed and record lacks proof tile caused the flooding |
Key Cases Cited
- Zwart v. Penning, 912 N.W.2d 833 (discussing South Dakota adoption of the civil law drainage rule)
- Surat Farms, LLC v. Brule Cty. Bd. of Comm’ns, 901 N.W.2d 365 (land-drainage adjudications are quasi-judicial)
- Winterton v. Elverson, 389 N.W.2d 633 (applying civil law rule to tile drainage; prohibits casting gathered surface water in unusual quantities onto lower land)
- Rumpza v. Zubke, 900 N.W.2d 601 (affirming liability where tile and drainage modifications increased water flow to neighbor)
- Magner v. Brinkman, 883 N.W.2d 74 (lay testimony may suffice in some drainage causation cases depending on facts)