Lang v. Wonnenberg

Lang, and Bill and Luella husband LANG

wife; Lang, Brenda wife; and Ed

husband Schlenker Schlenker, Hazel husband

wife, Appellees, Plaintiffs and

v. Defendant, WONNENBERG,

Lloyd

Third-Party Plaintiff and

Appellant,

BOONE TOWNSHIP OF SHERIDAN

COUNTY, Dakota, public cor- North Third-Party

poration, Defendant

Appellee.

Civ. No. 890171.

Supreme Court of North Dakota.

April 25, 1990. Mandan,

Kelsch, Kelsch, Austin, Ruff & appellees; argued by plaintiffs and Wil- liam C. Kelsch. Durick, Bismarck, for third-

Pearce & appellee; argued by party defendant and Jerome C. Kettleson. Smith, Kirmis,

Zuger, Bolinske & Bis- defendant, marck, third-party plaintiff argued by Murray Sag- G. appellant; sveen. WALLE,

VANDE Justice. Wonnenberg appealed a dis- Lloyd Bill judgment awarded trict court Lang Lang], and Luella [Bill Lang], and Ed and Brenda [Chuck approximately Hazel Schlenker [Schlenker] $260,000 the unlaw- draining ponds ful on Won- nenberg’s property; ordered improperly opened drains and to to close all storage pre-drain them to their ca- restore Wonnenberg’s third- pacity; and dismissed Township. complaint against Boone party part, part, reverse We affirm proceedings. remand for further Wonnenberg, September damaged Langs, precipitation, and Schlenker Township in township farmland located in Boone own road. Board and Wonnen- County. Wonnenberg agreed Sheridan owns four berg pay that Wonnenberg would quarter-sections of in the township, land percent the cost to raise the road so adjacent three of which are to and south of keep that it act as a would dam and road that is maintained section-line During water on his land. the summer of Township. slough, large A referred Boone Township County 1981 Boone had Sheridan slough,” “big to at trial as the is located on personnel along raise the road the north Wonnenberg’s land on the south side of the slough big approximately side three township road. Bill owns farmland feet. Neither nor Boone north and downstream of Wonnen- located cul- Township plugged were aware that a berg’s Lang land. Chuck owns a 640-acre township vert under was located the road farm, of which is located north and some big slough. in the area the of Wonnenberg’s of land with downstream following years, 1983, The two 1982 and located it. Schlenker the rest west of owns extremely years wet in the area and Wonnenberg’s farmland located west the The runoff was substantial. water property Lang. and rents land to Bill from into the drained wetlands flowed the Wonnenberg In 1979 decided to drain the big slough by and was the contained raised ponds quarter- his and in three of The township road. trial court found that big slough. planned the He sections into to big as the in the near slough water rose the township act as a have the road dam to road, top up it backed and flowed in waters his own land. confine the to Won- westerly flooding portions a direction work, nenberg hired a to do the contractor property by Lang owned Chuck and permit not seek to drain from but he did a early In stand- Schlenker. summer County Water Resource the Sheridan ing big slough open water in the forced the Board, did not contact downstream land- culvert, plugged releasing a substantial owners, engineer with an or did consult quantity The of water. trial court found professional, did not calculate the other and flooding that this water extensive storage capacity the he water wetlands by on downstream farmlands owned Bill planned drainage the part to drain. As Lang Lang. Township and Chuck Boone dug project, the contractor a ditch six-feet then, and, had the closed culvert since the bottom, the deep, five to six-feet wide at Langs’ township property north the road top, at and 200 100-feet wide the to 300- flooded. The trial has not been court long. Wonnenberg, to the feet Unknown found, however, previously-re- that major a two ditch divide between breached large leased increased of a water the size Sheyenne River drain basins—the basin natural from 28.1 acres 46.9 wetland Canada, Bay, and which flows Hudson acres, remain and caused land to wet basin, River flows to the the James through drought of and unusable Wonnenberg ap- Mexico. drained Gulf of addition, trial that from court found proximately 350 of 480 acres in the slough through big filled sections, reducing quarter three his wet- and roadtop with water to the level excess acreage from 45.2 acres to 8.4 land surface flooding to the west again water traveled acres. portions property owned Chuck big slough flooded over the In 1980 and Schlenker. road, every spring as had township Langs The and Schlenker commenced runoff occurred. The which substantial August Wonnenberg in against this action to three was covered with two feet road injury to their seeking for for a distance of 200 to 300 feet and water Wonnenberg’s drain- farmlands caused Township Board had the road the Boone 61-01-22, either N.D. ing The violation against passage. Board § barricaded 61-32-03, [currently codified at N.D. C.C. special meeting, at which Wonnen- held a § C.C.], which, of this under facts acknowledged draining, his cou- berg drain, the reason- August required permit to pled heavier usual a with than rule, fact, seeking injunctive trier of do able-use relief we not reverse trial findings court’s require closing of the drains. reason alone. Wonnen- brought third-party Chrysler- action Russell Land Co. v. Mandan berg against Plymouth, 377 N.W.2d 549 Township alleging “carelessly that it Boone negligently improve failed the road- LIABILITY way sufficiently act as a dam the agreed....” parties asserts he erroneously court determined that trial, the trial After bench court found proper liable their to the because Langs to the liable ty would have flooded without the addition violating Schlenker 61-01-22. The al land. He con water drained his Township court found that Boone was not that, tends because 1982 and 1983 were negligent Wonnenberg’s and dismissed very high years, unusually wet it was the complaint. third-party court found flooding rainfall and runoff caused the permanently lands were “insignificant” rather than the additional $30,880, damaged Bill awarded drainage. runoff which resulted from his Lang $39,585, $27,495 and Schlenker effect, Wonnenberg, challenges the trial in of for the diminution value their land. finding proximate court’s and of cause its Additionally, the trial court awarded Bill rejection his Wheth of act-of-Goddefense. $53,961.10 $89,- and Chuck proxi Wonnenberg’s drainage er was the property for loss use of their 594.16 plaintiffs’ mate damage cause of the to the years through during the 1983 property question ais of fact. Martin v. found Wonnenberg court also that acted (N.D.1985). Weckerly, 364 N.W.2d 93 maliciously oppressively and and awarded $10,000 exemplary the dam- pre order to ages. The court further ordered Wonnen- defense, vail on the act-of-God he had the all he berg opened to close the drains establishing by preponderance burden of pre-drain and restore them to their 1979 rainfall, runoff, that evidence the storage capacity pay the and to cost of (1) flooding unprecedented and were changing the the township character of (2) extraordinary; could not have been rea through road as a dam the installation of a (3) sonably anticipated; not could have working culvert. reasonably provided against; (4) been proximate were the sole cause dam appeal, Wonnenberg On raises age plaintiffs’ property. Hoge the v. regard liability numerous issues with County Burleigh Management Water damages. his Most of assertions con Dist., (N.D.1981). If 311 N.W.2d 23 an act attacks, findings on the trial court’s stitute negligence of God and the the defendant findings A trial of fact. court’s fact will produce injury, combine to the the defen appeal clearly not set aside on unless Dempsey City Souris, dant is liable. v. erroneous, regard given with due to the (N.D.1979). 279 N.W.2d 418 opportunity judge of the trial court to the credibility 52(a), supports of the witnesses. Rule The record the trial court’s finding A finding clearly snowmelt, of fact the 1982 N.D.R.Civ.P. is and 1983 when, rain, although resulting there unpre erroneous is some runoff were not it, support reviewing extraordinary. years the court dictable These evidence cy the entire is left with a the on record definite not wettest on record. Wet cles, reasoned, firm conviction a mistake has been as the trial court are fore KBM, MacKichan, seeable, reasonably anticipated, made. v. 438 Inc. should be (N.D.1989). finding A 181 fact and will result in more than in dry N.W.2d runoff comports permissible Wonnenberg’s years. drainage with one of two was sub stantial, clearly eliminating the approximately views of evidence is errone Pardon, Vogel storage capacity prop on his ous. N.W.2d 348 acre-inches may erty. drainage, have Wonnenberg’s While we After tem viewed differently porary if plaintiffs’ property the facts we had the wetlands the been by flooding the of the road caused drying early out tion to history which had draining. Nor was it unforeseeable permanent wetlands his season became each that, We conclude amount of drain- drought given of 1988. the substantial until rejecting Wonnenberg, might court did not err road age that the trial done defense. Wonnenberg’s flooding. act-of-God We con- prevent additional err in the trial court did not clude that Wonnenberg also attacks the Township’s acts were finding that Boone impounded finding that the water court’s intervening not an cause. township road flowed west caus behind by Chuck property owned ing asserts also that this He asserts Lang and Schlenker. negligent it re Township was when Boone a sur finding clearly erroneous because township road and failed to constructed firm Decem engineering an vey done According culvert. plugged locate the point highest 1988 showed that ber culvert, hidden Wonnenberg, it was the higher than the drainage ditch was drainage, proximately rather than his township the reconstructed elevation of any damage plaintiffs. to the had not flowed over Because water road. raised, he township road after it was township The record reflects that west it could not have flowed contends that no information or other supervisors had court road. The trial topping the without in the that there was a culvert indication expert witness who relied on open. road until the culvert burst Sheridan in 1984 and property had examined of culvert locations County kept no records contrary opinion. The trial court reached a kept Township Boone no prior to 1957 and Bill and Chuck testimony relied on also culvert locations. Before records of westerly in did flow a Lang that the water raised, township supervi- three road was was raised. More after the road direction metal detector from the sors borrowed a over, that in the fall testified for more city and searched of Goodrich 1988, survey, he observed prior to the of might see if a culvert be than one hour to cultivating drainage ditch Wonnenberg detector did in the road. The metal located fill the ditch in way in a as to areas such culvert, presence of a not disclose the this, noted the trial court part. Because of knowl- supervisors’ collective based on the in the elevations concerns whether “serious in the area and edge township roads accuracy to the any December 1988 bear road, they observations of the their visual We cannot years preceding.” in elevations no culvert that there was determined water finding that the say the trial court’s supervisors testified that road. One clearly erroneous. west is flowed was” there they had reason believe “[n]o that in the road and a culvert Wonnenberg asserts that Boone “just to for one was they reason searched properly construct Township’s failure there was no to make sure double check intervening act township an road was court reasoned The trial damages culvert.” any liability for relieving him of already a tortfeasor Wonnenberg “was disagree. township road. We north of the Township Boone of statute when violation a defendant of In order to relieve attempt Township’s got involved ... Boone his consequences of responsibility for the raising its locate a culvert and intervening cause must be negligence, the circum- under the road were reasonable connection of cause that severs the one stances, duty of care satisfied its and [it] negligent act and the effect between Wonnenberg was negligent. not [was] Light, 156 N.W.2d injury. v. Wolff Township was Boone negligent 100% intervening (N.D.1968). An cause negligent at all.” not independent and unforesee must be both findings trial court’s conclude the Town We supra. Boone Light, able. Wolff negligent Township was not that Boone indepen raising the road was not ship’s prox- Wonnenberg’s acts were came about as the result dent because damages are imate cause of the solu- to find a meeting a with are not plaintiffs’ property this case See Russell Land clearly erroneous. questionable and it is whether Co., assuming purposes for “distinct” supra. Even for determin- there is a “reasonable basis” Township Boone was argument of each cause in a case ing the contribution negligent joint and was a tortfeasor section, City Mi- as this. See Thorson v. in the next such as we discuss not, any give 153 N.W.2d 764 no evidence to introduced event, Restatement appor- section 433B of the the trial a reasonable basis for court (1965)2 (Second) places the of Torts burden tioning damages between them. proof appropriate apportion- as to DAMAGES party seeking to limit his liabil- ment on the capable ity ground on the that the harm is Wonnenberg challenges the trial Wonnenberg did not in- apportionment. damages on numerous court’s award of at trial that would have troduce' evidence grounds. Wonnenberg asserts that the dis given the trial court a reasonable basis to misapplied by 61-01-22 hold trict court § damages among various apportion the ing percent plain him liable for appeal his causes. His assertion on may damages “even if he have con tiffs’ liability limited to a “should have been small fraction of the wa tributed percentage damages” is small of the total provided perti ter.” Section 61-01-22 certainly meet this insufficient to burden. draining, part “[a]ny person nent or that the trial court did not err We conclude drained, pond, causing to water of a per- holding Wonnenberg liable for 100 slough, lake which drains an area ... damages. cent of more, comprising eighty acres or ... with so, securing permit to do ... out first Wonnenberg asserts that the trial by damage, shall for all sustained be liable 32-03-09.1, N.D.C.C., misapplied court § by draining....” any person caused such parties agreed governs damages which the 1. Won- 1977 N.D.Sess. Laws Ch. provides: in this case. The statute nenberg contends that the trial court damages “32-03-09.1. Measure of percentage of should have determined what arising injury property caused his 1979 drain measure of contract. —The causes, activities, age opposed to other injury property the breach liability and limited his to amount. obligation arising from con- of an (Sec- tract, the Restatement except expressly Section 433A of when otherwise ond) (1965)1 damages law, provided by presumed of Torts states that is to be the among apportioned repairs necessary harm are to be two cost of to for reasonable property where there are dis- restore the to the condition it or more causes immediately injury in before the was harms or there is a reasonable basis was tinct each inflicted and the reasonable value of the determining for the contribution of also, pending single See Prosser loss of use restoration cause to a harm. Keeton, pp. property, prop- unless restoration of the The Law Torts at of (5th 1982). erty period time is The harms to the within a reasonable of 348-352 ed. “(2) Where the tortious conduct of two or Apportionment Harm to Causes "§ 1. 433 A. of bring "(1) more actors has combined to about Damages apportioned harm are to be plaintiff, among "(a) the and one or more of the two or more causes where harm to harms, liability there are distinct or on the actors seeks to limit his "(b) there is a reasonable basis for determin- capable apportion- ground that the harm is single ing each cause to a the contribution of them, among proof the burden of as to ment harm. apportionment upon the is each such actor. "(2) Damages any other harm cannot be “(3) Where the conduct of two or more actors among apportioned or two more causes." tortious, proved is and it is that harm has plaintiff by only been caused to the them, one of "§ 433 B. Burden of Proof uncertainty but there is as to which one (2) “(1) Except as stated in Subsections it, upon has caused the burden is each such (3), proof that the con- the burden of tortious prove actor to that he has not caused the duct of the defendant has caused the harm to upon plaintiff. plaintiff harm.” the is the cattails, reeds, trees, impracticable, saplings in which and brush. impossible damages pre- finding is damage the measure The trial that the case court’s the permanent sumed to be the difference between in that the was nature and land property immediate- market value the not be within a could restored reasonable immediately inju- after the ly before clearly time is erroneous. value of the loss of ry and the reasonable Moreover, replacement property. pending although

use the there is some property shall the in Restoration evidence the record that the land could reason- impracticable condition, deemed when the possibly be to its former restored necessary repairs and the able cost of party presented as to neither evidence the pend- of use reasonable value of the loss cost of restoration. essential greater than the ing restoration is plaintiffs ly asserts that the had the burden amount which the market value present to of both measures of evidence diminished property has been because that, here, plaintiffs failed to value and value of injury and the reasonable carry by presenting evidence that burden pending replacement.” the loss of use However, of the diminution value. “is trial court noted that the statute when either diminution value or cost of The personal easily applied more to appropriate somewhat measures of restoration are property it is to real estate under than given plaintiff has damages case,” in this but found that circumstances to right elect the measure deemed more draining permanent Wonnenberg’s he disagrees, accurate and if the defendant plaintiffs’ lands and that damage prove has the burden alternative “within a reason- restoration of these lands appropriate. Meyer measure is more impossible.” court able time Hansen, 373 N.W.2d 392 As accepted the valuation of the lands before explained: one court has flooding and after the testified “The nature of the claim that a differ- expert appraiser for the land damages yield a ent measure of would resulting plaintiffs the diminu- awarded the question award raises a somewhat lesser Wonnenberg. asserts that tion value. damages mitigation akin to or avoid- finding permanent the trial court erred i.e., plaintiff consequences; able lands because the reasonably receiving than is nec- no more “only temporarily flooded” property was remedy fully injury while essary to to its former easily restored and could be avoiding uneconomical efforts. As asserts productivity. also issue, upon falls ‘mitigation’ the burden applied have cost that the trial court should prove a lesser the defendant diminution of restoration rather than by plaintiff than that claimed amount because as the measure value compensate sufficiently for the will be a lower cost restoration would of stated, Simply plaintiff the loss.... Klemm, v. 377 Jablonsky amount. See only as to one present evidence need (N.D.1985); Keller, v. 356 N.W.2d 560 Roll damages, of and that measure measure 154 N.W.2d party presents will used when neither be contains evidence that The record mea- going to the other evidence plaintiffs’ proper- sloughs on the ponds and sure. ...” partial permanent ty changed from 35, 447 Etlinger, 55 N.Y.2d v. Jenkins not long-standing water wetlands and that 589, 696, 698, 432 N.E.2d 591 N.Y.S.2d grasses, but causes the destroys tame also, 22 (1982) Am. See killing omitted]. by [citations bacteria which soil to turn "sour” (1988). 402, p. at 489 Damages Jur.2d growing grasses § for the of are essential in is evidence the record Because there no drought crops. Although the 1988 restoration establishing the cost of what evapo- waters to most of the flood be, the trial court conclude that would we rate, found that the lands the trial court awarding damages in based on did not err patches with barren are now covered weeds, plaintiffs’ lands. in diminution value sour soil with intermittent areas 840

Notwithstanding Wonnenberg Wonnenberg’s drainage reduced the value accepts applicable as the stat 32-03-09.1 land and has also resulted § governing damages in this he ute being to make efficient use their unable the trial erred in award asserts that court property past over the several ing damages of use in addition to for loss years. We conclude that the did in value because it results diminution recovery by being not receive a double recovery plaintiffs. We dis double for damages representing awarded the loss of agree. property use of their addition to the property. diminution value of legislative Apart apparent from the sanc- 32-03-09.1, damages tion for these § specu also attacks as generally recognized is lative the trial court’s award to Chuck may use in addition to loss of awarded $89,594.16 Lang plus interest for loss of property. diminution in the value of the operation. income from his cattle This 414, E.g., p. 22 at Damages Am.Jur.2d § solely part of a amount stems his loss (1988); (Second) 497 Restatement of Torts hay Wonnenberg’s of his source of due to (1979);3 Dobbs, D. 929 Handbook on the drainage which claims resulted in an 5.5, (1973). p. at 345 Law Remedies § inability to add 80 cow/calf units to his upheld past. We have such awards According Lang, cattle herd. he had v. 364 N.W.2d 93 Weckerly, See Martin arranged financing a local with banker for (N.D.1985). In County Weld Bd. Coun- purchase of additional cattle. How 1309, Slovek, ty 723 P.2d 1317 Comm’rs ever, Lang required to have an ade (Colo.1986),the court reasoned: quate source of feed for the cattle he “Restoring pre-tort the owner to his planned purchase because the banker position by awarding damages rep- purpose. would lend funds (cid:127) resent the cost of restoration —or com- The trial court found that because of “the pensating that of mar- owner for loss hay high-producing loss of the from the awarding ket value instead of restoration by Wonnenberg’s wetlands caused drain nothing compensate costs—does ing, inability financing and his to secure owner for loss of the use of purchase hay feeding, [Lang] for winter property, any, during injurious if inci- being opportunity lost the able to ex temporary dent or because of a interfer- pand his herd to allow for the efficient use ence with use caused the incident and of his facilities.” continuing injury repaired. until the “ whole, In order to make the com- owner recoverable, profits are Where lost ... pensation paid must be for this loss of speculation the amount must not be left to use if such loss can be established conjecture. testimony must show competent evidence.” degree certainty with a fair profit diminution of income or but that it is The trial court awarded Bill fairly wrong complained to the attributable Lang damages for loss of use of ” DeMers, Fink, of.’ 501 Inc. v. 148 property years through their for the 820, (N.D.1967) award, [quoting N.W.2d 1988. Because of this the trial Pla Swanton, court did not allow interest on the diminu- ton v. 59 N.D. 230 N.W. (1930) say tion in value We cannot that this award otherwise would ]. payment. damage speculative run have from 1983 to the date of element of is too under land, “(b) Harm to Land Past Invasions the of use of the "§ 3. 929. loss from "(c) annoyance "(1) judgment discomfort and to him as If entitled one is to a for harm resulting past occupant. a and not to land amounting from invasion an "(2) value, a total the thing to destruction of the land If a attached to but severa- compensation include damaged, may he at his ble from it is election "(a) the difference between the value of the thing recover the loss in value to the instead land before the harm and the value after the to the land as a whole.” harm, appropriate or at his election in an case, the cost of restoration that has been or incurred, may reasonably

841 Wonnenberg’s draining along the somewhere that line we circumstances. should hay for feed- dropped percent caused the loss of sufficient have that 12.5 interest. cattle, which, turn, ing in the additional We haven’t. Lang

effectively ineligible for to be “Q. At some point we have to use a the loan. has shown with cattle you pay refer what to as income to certainty” degree of that this loss is “fair only your interest, you pay but have to Wonnenberg’s acts. fairly attributable to principal money you the and the bor- cows, purchase rowed to 80 additional is Nevertheless, the award amount of this that correct? Lang’s is estimate troublesome because cattle-raising opera- loss to his imagine, of income I yes.” “A. court,

tion, accepted by which was the trial Lang’s Because estimate of loss does not pro- include as a cost of fails to deductible cattle, in the cost to purchase factor the we principal duction the amount would conclude that the court erred trial in repay to the for the loan have had bank $89,594.16 awarding Lang and remand for to purchase the additional cattle. Chuck recomputation this award. fol- Lang testified on cross-examination as that the asserts lows: $10,- in awarding court erred Now, “Q. Fiergola] [By Okay. Mr. exemplary damages. 000 His first con your computations of the costs associat- regard tention in this that is because going calves are ed with these that 32-03-07, N.D.C.C., suspended by income, you any way § bring you have 8, Legislature July through 1987 buy- computed the cost associated with 30, 1993 N.D.Sess. Laws June Ch. ing [see the 80 additional cows? 404, 32-03.2-11, 15], and because N.D. § § “A. Yes. 8, C.C., July became effective on 1987 and “Q. Okay. figure? And that where is only applies to claims for relief which ac 1984,1 bought “A. cows and some crue after that date 1987 N.D.Sess. [see average I cows. paid an for those $418 404, 14], legal Laws Ch. there is no basis § be, average I We used an 550 to awarding exemplary damages guess, why I it generous, know don’t case where cause of action accrued generous. multiply it makes We 8, July reject 1987. this conten before We percent interest for what it 5.5 rate 1-02-17, N.D.C.C., provides tion. Section me, maybe if I charge would cost me pertinent part repeal any that “[t]he bought would have those cows. assembly legislative ... statute So, “Q. comput- you cost are releasing have the does not effect pur- ing here is the cost associated with fine, extinguishing any penalty, liability, or cows, money chasing the under such stat forfeiture incurred purchase those cows? takes Although “suspend” ute....” the terms Well, I you “A. what —like “repeal” synonymous are not [see available, money say, that's the that was 23.30 and Sutherland Stat. Const. 23.33 §§ arrangements were made. ed.1985) is, essence, (4th ], “a suspension have been—would have been cost would repeal time certain.” law for a interest on percent the twelve-and-a-half 490, Justices, 126 N.H. Opinion of those cows. (1985). A.2d We believe “Q. money you But borrowed a tem suspension of a statute constitutes purchase paid those 80 cows has to be “repeal” of that statute within the porary point, it not? back at some does Accordingly, meaning 1-02-17. we § Well, said “A. sure. We haven’t applica remains conclude 32-03-07 $89,- going to do with the what we July accruing prior claims ble to it, had would Supposedly I had it Wonnenberg also asserts And then we are too have went back. again. figuring exemplary it must over high We are award on did not re- by money plaintiffs because the every year taking that turned 842

quest exemplary damages by name in the advantages farming the attendant to their complaint, requested them but a operation thereby, occasioned pretrial Assuming, deciding, brief. without buy have acres on down- flooded that the evidence was such as to warrant a argument, standing stream lands.” That recovery exemplary damages, we cannot alone, presupposes exemplary damages for agree with the trial court that the com every drainage, pre- unwarranted act of plaint, liberally even construed Jablon [see law, sumably position'we as a matter of Klemm, (N.D. sky v. N.W.2d prepared time, are not to embrace at this 1985)], alleges facts to warrant a sufficient particularly damages where those are not recovery exemplary damages. While sought complaint. Although Won- complaint exemplary need not claim nenberg pretrial knew the time the brief damages by alleges name if it facts that exemplary damages was filed that recovery will warrant a of those being requested, he resisted those dam- Bendewald, 58 N.D. 227 N.W. [Lux ages, asserting that “Plaintiffs do not al- (1929)], in this instance we cannot malice, lege oppression, fraud or actual or alleged conclude that the facts are suffi presumed. allege Plaintiffs also fail to justify recovery cient to gener under the upon op- facts which this court could find damages. al claim complaint alleg The pression, important- fraud or malice. Most draining es Count I that the was “unlaw ly plaintiffs pled exemplary have not dam- prohibited ful and conduct” and at Count ages. plaintiffs pled The their intent to II, draining that the reasonably “was not compensatory damages only.” recover Al- necessary” and that did not court, though the trial in its memorandum take unnecessary “reasonable care to avoid following rejected decision Wonnen- injury Plaintiffs;” draining that the berg’s position, we are not convinced regard done “without to the reasonable exemplary damages the matter of and the land;” carrying capacity of Plaintiffs’ upon plaintiffs facts which the intended to Wonnenberg’s draining was “not a rely complaint were set forth in the suffi- reasonable use of the land.” We are not ciently give notice to of the prepared say that “unreasonable” con upon plaintiffs rely. facts intended to fraud, malice, duct oppression, is akin to We therefore reverse the award of exem- presumed, required by actual or plary damages. support 32-03-07 to such an award. In opinion, accordance with this we re- synon tentional or willful conduct is not verse the award of exemplary damages. ymous oppressive, with fraudulent or mali We also reverse the trial court’s award of cious conduct Realty v. Fol Co. [Bismarck $89,594.16 to Chuck for loss of in- den, and, (N.D.1984)], 354 N.W.2d 636 operation come from his cattle and remand follows, allegations of willful and in recomputation for a of that award. The tentional conduct are not sufficient to al judgment respects all other affirmed. lege an act which will warrant such a re covery. GIERKE, JJ., LEVINE and concur. paramount purpose complaint party is to inform the other MESCHKE, Justice, concurring and dis- being

the nature of the claims asserted senting. against him and the relief demanded his I concur majority opinion with the adversary. Vande Hoven v. Vande Ho liable, ven, holding Wonnenberg reversing 399 N.W.2d 855 In this $10,000 exemplary award of pretrial instance it was not until the dam- brief ages, reversing $89,- and in plaintiffs request that the the award of for dam ages by way punishment 594.16 to Chuck for loss was revealed of cattle request raising profits. part and the I company basis for that was that with the punitive involved, “Some award must be conclusion that did not re- not, upstream if recovery owners will be free to ceive sepa- some double from the simply pick up drain their all rate awards for the diminished value of (the year greatest they Wonnenberg’s drainage land were before their part flooding) as as for loss use activities. Plaintiffs’ increased well flooded succeeding years, “permanent.” their land for the six conditions not 1983 to 1988. So, “permanent” something here means aspects uneasy about

There are several perpetual everlasting, pri- less than or separate damage these awards. mary sense word. “Permanent” implies sloughs here that were not damages depend Diminished value on brought previous productive to their back is, “permanence” whether restora- —that period condition a reasonable “within impracticable” “impossible or tion was “impractica- time” and to do so that was period of time.” “within reasonable ble,” “impossible,” key rather than Unfortunately, NDCC 32-03-09.1. restora- ideas in 32-03-09.1. The trial court NDCC productive capacity of flooded tion “impractica- must have inferred that it was subject land neither a of common knowl- sloughs production to restore the to ble” Still, edge judicial expertise. there nor yet it not because had been done assumptions in the are some uncomfortable repeated floodings time in late 1988 after majority’s blithe conclusion that the dam- say and 1983. I “must have between 1980 plaintiffs’ sloughs “perma- to age no inferred” because there was direct testi- nent in nature” because there was evidence mony expert by any it was either long-standing destroys tame water “impossible” “impracticable.” or by killing grasses and turns soil “sour” grasses. crops and bacteria essential for contrary, plaintiffs’ expert engi- On the assumption conglomeration is that the One neer to the trial court that the admitted bareness, brush, cattails, reeds, saplings former land could be restored its condi- slough appears weeds which when a tion, explain when or how. but did enduring drys represents first out an condi- Wonnenberg’s engineer expert testified I tion. doubt that. wetlands, they dry,” “now that are agricultural purposes could used for be only skimpy there was evidence Because they “permanently dam- were not sloughs how are re- in this record about explain too aged,” but he did not when they production after have dried turned to previ- they how could be restored their out, Wonnenberg’s appellate brief resorted Indeed, productive capacity. at the ous geology than the to conventional rather decision, the end of the trial and before record: getting an an- trial court asked without knowledge It that North Da- is common swer: long- experiences kota short-term thing me about the Another that bothers cycles. sloughs These term weather been no there has water (and them) like have been al- thousands sloughs] since 1983.... over ternately parched since the [the flooded and reclaimed? What Why can’t this land be Yet, age. dry cycles last ice wet re- there that it can’t be evidence is damage” these “permanently did not claimed, impractical it’s in the or that sloughs. words of the statute? argument. Sloughs There is merit put productive use dry and can sum, do out be finding “permanent dam- again. a diminished value age,” justified award, depends plain- on inference that an all, sloughs, though had After sloughs restored their tiffs’ could smaller, Wonnenberg’s drainage. before “within reasonable preexisting condition Moreover, of extra water to the source appar- period of time.” This inference was up by the trial was dried these ently made from circumstantial evidence enjoined Wonnen- court. trial court eight they restored within were not berg original his land to the to restore flooding or increased years after the first injunction ap- and this was not contours most recent years five after the sloughs within long-run, plaintiffs’ In the pealed. by Wonnenberg’s drain- runoff, flooding added only by will be affected natural 844

age difficulty activities. I have with that While the Restatement recognize does finding and I doubt that I would have so the “loss of use land” can sometimes judge. found if I had been trial But as be recovered in addition to diminished val- sketchy impracticability as the evidence of (or restoration), ue the cost of the Restate- be, may of restoration there was the cir- against duplica- ment is careful to caution cumstantial evidence restoration was damages. tion of Comment d of Restate- Therefore, I reluctantly accept done. (Second) (1979) ment says: Torts 929 § it clearly that was not erroneous for the In damages addition to for the diminu- impracticable trial court to find that it was tion of the value or other similar ele- plaintiffs’ sloughs to restore within a rea- damage, plaintiff ments of is entitled sonable time. past prospective to recover for the or restoring Without evidence of the cost of loss of use caused the defendant’s previous productive to their wrong as this has not been in- far capacity, agree majority I with the that the cluded in the other elements dam- diminished value proper of the land was the ages plaintiff, awarded to the as stated damages. measure Long ago in Harke if plaintiff’s 931. Thus land has § Ewald, 828, 1009, 1010 51 N.D. 200 N.W. been flooded for a month so that he was (1924), suitably explained: this court land, unable to use the he is entitled to There is'no evidence in the record as to although recover for this loss there was and, reparation the cost of in the absence permanent no harm to the land evidence, of such opinion we are of the it (Emphasis added). the flood. should be assumed that the cost of resto- Here, Ias understand the trial court’s approximately equiv- ration would be awards, the diminished value was calculat- alent of the diminution in value. oth- ed for 1983. The appraiser testi- words, er testify where witnesses to the fied that in plain- market value of value, diminution it is reasonable to tiffs’ flooded lands had decreased from suppose forming judgment that in their per and more nothing, $350 acre to next to they have taken into consideration what per or acre. It was $50 this evidence of the [property] would cost to restore the decreased value which the trial court used its former condition. damages to fix the for diminished value. Likewise, other factors are reckoned into Besides, the trial court awarded each of the diminished value. Decreased value normal- Lang plaintiffs damages additional for loss ly takes into account the loss of future use of income from their wetlands thereafter injured property. until trial in 1988. Since loss of future This is uneasy aspect another of these profits necessarily included in separate duplication awards—the between award for decreased value in I be- the diminished value in 1983 and the de- lieve that duplication there was of dam- profits creased thereafter until ages. (Second) 1988. Comment a of Restatement The duplication effect of this (1979) can be un- Torts 929 it clear makes by comparing derstood overlap compensation size of the loss- inappropri- of-profits ate: awards to the diminished value awards. Bill and Luella received a Recovery depreciation resulting “permanent damage” award for is, sense, diminished past legal a invasion pro- $30,880.00, value of but their spective profits loss of upon since it is based the fact $56,563.85 award was that the for total present land has lost its value $87,440. because of harm This totalled per to its future use. The over acre $540 acres, effect of their upon although the harm entire 160 reasonable prospective purchaser is the test.... acres were flooded or cut off. Before the [injured] condition, though flooding, per- the entire acres were valued manent, $81,520, would affect the offer of a rea- at per $510 acre. Wonnen- purchaser. sonable berg pay must more than the value of the Lang get keep land, Luella yet Bill and land, Dakota, dry. now which is of North Plaintiff STATE Appellee, and Lang re- and Brenda

Similarly, Chuck for damage” award “permanent ceived v. $39,588, loss- and their diminished value of RATHJEN, Defendant Lester J. $89,594 for dam- total of-profits award was Appellant. $129,182. Although 15.1 acres ages of flooded, equals over $200 the total RATHJEN, Plaintiff Lester J. farm of 640 acres. per acre for their entire Appellant, Chuck are dried out and now land. Lang still have their and Brenda duplication damages should kind This Dakota, of North STATE approved. not be Appellee. Defendant emphasized is the award The effect 890175, Civ. No. 890176. Cr. No. profits loss No award for Schlenkers. rent from their to them because was made Supreme of North Dakota. Court after Wonnen- had continued unabated land activity drainage circumstance berg’s May —a “perma- casts doubt on the which also Still, there was no injury. nence” damages to Schlenkers.

duplication of course, majority I realize that

Of $89,594 award

opinion reverses profits loss of and Brenda related properly factor in

because it did not Yet, recomputation unexpended costs. is on remand and permitted

of that award time profits being allowed for the

loss value was determined.

after diminished loss-of-profit awards

I would both reverse recomputation to allow remand at profits prior to the date

only loss of “permanent damages” were calculat- in 1983.

ed majority opinion, approved by

As saving grace to the is one

there any not allow The trial court did

awards. interest for diminished value.

prejudgment the effect du- moderates

This somewhat course, I be-

plication damages, of but that, interest would be a in this

lieve exagger- equitable allowance than

more addition diminished values

ation of the years. profits for five more

of lost extent, respectfully I dissent.

To that

ERICKSTAD, C.J., concurs.

Case Details

Case Name: Lang v. Wonnenberg

Court Name: North Dakota Supreme Court

Date Published: Apr 25, 1990

Citation: 455 N.W.2d 832

Docket Number: Civ. 890171

Court Abbreviation: N.D.