912 N.W.2d 833
S.D.2018Background
- Upstream landowners Ryan and Charles Zwart installed a drain-tile system (with county permit) and obtained Penning’s oral permission to connect to his downstream tile; they agreed that if Penning’s system became overwhelmed, the Zwarts could install an independent tile under Penning’s land.
- The Zwarts dug their tile deeper than otherwise needed to reach Penning’s system, incurring extra cost.
- Penning experienced flooding in 2011–2012, installed a metal restrictor plate at the property line (2012), and later removed the plate and disconnected the Zwarts’ tile after a contested drainage board proceeding (2013).
- After disconnection, water pooled on the Zwarts’ land and they suffered crop damage; they sued for damages and an order permitting reconnection/installation of an independent line; Penning counterclaimed for unlawful discharge/trespass.
- The circuit court found Penning violated civil drainage law, applied promissory estoppel to enforce his promise, awarded the Zwarts crop damages and an easement to install an independent tile under Penning’s land, and rejected Penning’s trespass counterclaim.
- On appeal the Supreme Court affirmed the damages and easement under promissory estoppel, reversed the trespass finding against Penning (holding no trespass occurred), and affirmed rejection of Penning’s counterclaim.
Issues
| Issue | Plaintiff's Argument (Zwart) | Defendant's Argument (Penning) | Held |
|---|---|---|---|
| Whether either party violated the civil law rule for rural surface drainage | Zwarts argued their connection to Penning’s established tile (discharging to Bachelor Creek) was permissible; circuit court found Penning obstructed a natural watercourse by restricting subsurface flow | Penning argued subsurface tile discharge is not the same as drainage into a natural watercourse and the court conflated tile flow with natural surface drainage | Court declined to resolve civil-law boundary because the parties’ agreement controlled; found facts supporting obstruction of subsurface drainage by Penning’s actions and that those actions caused crop damage (2012–2016) |
| Whether promissory estoppel enforces Penning’s oral promise allowing connection and later installation of an independent tile under Penning’s land | Zwarts: reasonably relied on Penning’s promise, incurred substantial economic detriment by digging deeper, and foreseeable reliance justifies enforcement | Penning: no time limit was set; enforcing an open-ended promise is unfair; Zwarts knew of flooding and failed to timely act | Court held promissory estoppel applied: reliance was reasonable and foreseeable; enforcement (damages and easement) avoids injustice |
| Whether Penning committed trespass by installing restrictor plate and severing connection (causing ponding) | Zwarts: Penning intentionally caused water to back up and flood their land, constituting trespass | Penning: he did not cause water to enter Zwarts’ land; water was naturally destined to arrive; Zwarts’ connection permitted discharge so no trespass | Court erred to the extent it labeled Penning’s conduct a trespass; holding reversed: causing water to remain (back up) differs from causing water to enter another’s land; however outcome stands on promissory estoppel |
Key Cases Cited
- Judd v. Blakeman, 195 S.W. 119 (Ky. 1917) (authority cited for tort when one erects a barrier causing water to back up and flood another’s land)
- Hahne v. Burr, 705 N.W.2d 867 (S.D. 2005) (elements and standards for promissory estoppel)
- Benson v. State, 710 N.W.2d 131 (S.D. 2006) (definition and elements of civil trespass)
- Knodel v. Kassel Twp., 581 N.W.2d 504 (S.D. 1998) (civil law rule: downstream owner bears easement for natural drainage)
- Magner v. Brinkman, 883 N.W.2d 74 (S.D. 2016) (permitted drainage via an established watercourse includes man-made courses that have become fixed and continuous)