*1 Ralph Carolyn Lee, LEE E. B. Appellants
Plaintiffs and
, SCHULTZ,
Mark G. Defendant Appellee.
No. 14564.
Supreme Court of South Dakota.
Considered on Briefs Jan. 1985. Sept.
Decided
Rehearing 15, 1985. Denied Oct. Mumford, Pardy
T.R. Protsch & Par- Howard, dy, plaintiffs appellants. Flandreau, Ellingson, William J. for de- appellee. fendant and MORGAN, Justice. application trial court’s of the doc- judicata
trine of res resulted in the dismis- appellants’ complaint, by sal of (Lees) Ralph Carolyn E. Lee and B. Lee sought resulting abatement of a nuisance respondent (Schultz) Mark G. Schultz’ sloughs on his land onto the affirmatively pled Lees. Schultz adjudica- an based on earlier tion, individually wherein Lee (Ralph) against main- tenance of which relief appeal denied. we reverse and remand. *2 court, 1981, Defendant,
The
the trial
as stated
purposes
facts before
for
of bet-
Schultz,
essentially:
complaint,
in Lees’
husbandry, by
ter
means of an artifi-
lk 201 is drain
lessee
the NW
Section
wholly upon
cial ditch constructed
his
slough
slough
a
into
44-acre
a 30-acre
land,
large slough
own
drained the
land,
on
the NE
his own
¼ Section
which,
slough
into the smaller
slough
and into another 5-acre
on that
full, would drain across the road onto
quarter
northerly
in a
thence it flows
Plaintiff’s land.
direction onto Lees’ land situated in the
Drainage
from Defendant’s
SE n
and the N
of Section
where it
V2
across the road north onto Plaintiff’s
has accumulated and formed a 90-acre
land follow a natural course and such
slough
acreage
and rendered such
untilla-
draining
in that direction is
alleged
ble.
It
further
the 30-
is
by
either absorbed
the field as it
to,
slough,
acre
above referred
was a
land,
crosses
if the
Plaintiff’s
flow
slough, having
land-locked
no natural
frozen,
heavy
ground
or the
is
drainage, but as a result of an artificial cut
flows
the northeast where it
feet,
eight
or ditch of from four to
Drainage
drains.
across Plaintiff’s
slough.
drained into the 5-acre
land follows a natural water course.
a declaration that the
con
nuisance,
thereof,
stituted a
There was no evidence that
abatement
water would
damages
crops.
for the loss of
slough
unreasonably damage Plaintiff’s
land.
prior adjudication
which Schultz re-
appeal
Plaintiff did not
that decision.
approximately
lies on was commenced
two
years previous to the commencement of
opinion
In its memorandum
in this
Ralph’s complaint
this action.
in that ac-
the trial court noted that in the first action
alleged essentially
tion
that Schultz had Ralph alleged creation of an unnatural
watershed,
diverted a 32-acre
which had
drainage that would cast water on his land
thirty years,
existed for at least
so as to
to his detriment.
It went on to state:
land,
go
Ralph’s
enable the water to
onto
Plaintiff
claims
now
ditch
thereby causing irreparable damage. The
constructed
defendant has cast water
complaint
alleged
further
that Schultz’ ac-
on his land to his detriment. The court
46-5-46,
tion violated SDCL 46-5-1 and
already
has
ruled the defendant could
extremely
and that it would be
difficult to
construct and maintain the ditch. There
compensation
ascertain
adequate
to afford
allegation
any-
is no
defendant has done
relief; i.e.,
plain, speedy,
no other
and ade-
judicata’ prevents
else.
‘Res
quate remedy at
law was available.
relitigation of an issue of ultimate fact
sought permanent injunction
a
under SDCL
already
case,
determined.
In the instant
court,
21-8-14. After a trial to the
prior
court in
decision
allowed
judge
findings
trial
entered
of fact and
ditch,
defendant to construct a
the ulti-
conclusions of
denying
law and a
already
mate issue has
been determined.
Ralph’s request
injunction.
for
The trial
defendant, having
to con-
findings
court’s
of fact included the follow-
a
struct
cannot now be held liable
ing:
any
detriment that
3. On Defendant’s
land are
two
caused.
sloughs,
large
a
one in the Southeast
Obviously,
judge
did not fool
corner and a smaller one in the mid-
dle of the
side.
Mother Nature when he said the
north
The small
runoff
slough naturally drains
water would drain and not collect. It did
across the
road onto Plaintiff’s
not drain and it
large
bigger
land. The
did collect
slough
original
was a land-locked
than
slough.
basin with
Schultz’
That
no natural
in January,
being
outlet until
the issue before us is
North,
West,
Township
Range
Moody County,
1. All land lies in
South Dakota.
is, indeed,
whether his first decision
allege
now
serious
and detriment
judicata in the second cause of action.
to their
as a result of the drain-
age. There was no evidence before the
Service,
Keith v.
Truck
Witters
dispute
claim,
court to
being
(1936), appears
tion
question
any
cannot be drawn in
in
This
unique
case is
in that
appears
to
future action
parties
between
same
be the first time that this court has been
privies
or their
whether the cause of
upon
called
to consider the doctrine of res
in
action
the two actions be identical or
judicata,
applied
as
to
seeking
actions
in-
different.
all,
junctive relief. First of
ofwe
course
(cita-
recognize
64
at
that
S.D.
wherein we held: facts which estab “[T]he compensation. difficult to ascertain In the give lish right or rise to the of action a action, alleged second cause of Lees that party seeks to enforce constitutes his cause watershed, Schultz had diverted the drain- (Citations omitted.) of action.” ing it onto their land such amount as to materially damage it. In the first cause of strongly urge judicata us that res action the trial court found no evidence applicable to this case because the facts gather that water would and form a new give right rise to the to relief now slough damage Ralph’s above, otherwise land changed. are As noted the trial right and found Schultz had a to drain court did find in the first cause of action surface waters as he had In that “there done. was no evidence that water action, although would second cause of detriment, acknowledged court the claim of unreasonably damage plaintiffs Although already land.” it found that it had alleges Schultz’ motion ruled on the issue, alleged right that the facts as ultimate the second construct a and, complaint therefore, alleged identical to the facts ditch Schultz could not be action, adjudicated prior any held liable for detriment have appear accurate, does not to be for Lees caused. been summary 1983). Jewelry 2. For the latest see Black Hills Ind., (S.D. Mfg. v. Felco Jewel
In
first
of
cause
at
N.W.
If and
properly
court
denied
the dominant
be
land owner exceeds
limits,
those
damages.
entirely
cause
failed to show
different fact situa-
Schultz,
tion
maintaining
as the owner of the dominant
exists. He is then
a nui-
and,
lying
upon
showing
sance
upper portion
in the
of
of
the natural
those dis-
tinguishing facts,
course,
of
legal
judica-
has a
doctrine
water
ease
ta
right,
purpose
ment
for the
must fall.
of better hus
bandry, by
ditches,
means of artificial
In
City
Spokane,
Turner v.
drain
he
surface
has done which
(1951),
Wash.2d
We the to that the owner that The be of trial court agricultural lands, dominant had dismissed upon grounds situate the action the and lying upper dust, noise, in portion dangers the of a that the natural of and confu- sion; danger pollution water course or water basin the to wells and of has, water; in annoyance the course pur- plaintiffs’ of for the to poses legal comfort, health, repose, husbandry, of better a safety, ease- were by right, ment of not of means artificial drains sufficient imminence to warrant wholly upon granting or ditches constructed his at time of the land, hearing. Washington Supreme own to accelerate and The hasten the Court upheld flow commenting: of waters that are this surface waters down, under the rule herein laid and to itWhile is that equity true a court of upon cast the same into and a servient enjoin may anticipated a threatened or lying estate lower in down the same nat- nuisance, public private, where it course, ural drainage point at that clearly appears that a nuisance nec- will nature, by where means of ravines or essarily contemplated result in the act or depressions, has indicated that such sur- enjoin, yet it is to face should find waters a natural out- ought interfere, court not to where the let^] apprehended injury is aof to character justify conflicting opinions as to whether But the granted by easement in it will fact ever be realized. rule has limitations: (citation omitted). P.2d 301-02 [Ejven though the waters of the basin in on, however, Washington Court went question are surface waters and there is point mean, however, out: “This does not legal a upon respondents’ burden lands city may that the not enjoined from its through to receive such waters the natu- operation upon proper showing.” later ral water crossing lands, course such Id. at 302. The Court expressed further such burden and the accompanying ease- itself be in accord with trial court’s reasonable, or, ment is one that indication “that pre- its decision would not noted, above one good consonant with [plaintiffs] vent applying for an in- neighborliness. Under the claim of an junction after, example, blast, the first appellant easement could rightfully if they they damaged, show that upon turn large the servient estate vol- danger suffering damage.” or are in real water, umes of out proportion of all Id. at 303. course, capacity the water thus damage cause serious respon- vein, Eighth In a similar Circuit dents. Appeals Lakenan, in Court of Klaber v. (1933), HENDERSON, the refusal of the (specially F.2d 86 discussed Justice concur- grant injunction against trial court to ring). the obstruction of view to and from a store Although litigants pose legal both building, plaintiff where could show no issues in this pertaining case as to the argued anticipated that it but judicata, concerning doctrine of res the law building replaced that the would be with an of surface waters is also building, office where the obstruction by opinion. opinion treated this Our in damage. would result Court held Gross v. Connecticut Mutual Ins. Life upon that “the case is determined the facts Co., (S.D.1985), was filed existing as to the situation at the time the January on some three months findings,” trial court made its and that after the briefs were filed herein. Obvi- affirmance trial court’s decision of the ously, parties these were unaware of the prejudice bring- would “be without holding Gross, as Gross was not handed ing of another suit whenever circumstances down when the briefs were filed herein. change plaintiff so is able to show thoroughly Gross reviewed the “civil law injury.” substantial Id. at 92. theAs majority opinion rule” cited summarized, Court would be most un- “[i]t Andrews, Thompson 165 N.W. and at enjoin reasonable to not result- [a nuisance] subsequent citing least one present injury substantial because of Thompson, namely Metropoli- Johnson v. possibility the mere that circumstances Co., tan Ins. Life about, change bring so as to at a later (1946). Gross, inas the instant
time,
injury.”
such
Id. at 92-93.
only
incep-
involved surface waters but
We think that the Lees are in the
tually
injunction
damages.
an
and later
In
position
plaintiffs
same
as the
in the fore Gross, a feedlot dam was cut which caused
going cases. At the time of commence
Here,
flooding.
apparent
we have the
cut-
action,
simply
ment of the first
there was
ting away
ridge creating
of a
an artificial
no
resulting
shown
from the ditch
ditch.
ing.
appealed
If
had
the trial court’s
injunctive
appro
That
be
decision,
first
undoubtedly
it would
have
priate remedy
injury
suffered
un
But, now,
resulted in an affirmance.
cir
Jarrett,
flooding,
lawful
see Tisher v.
75
changed.
cumstances have
Granted the
503,
(1955)
I concur with the as- sessment of par- the res issue and ticularly its Black Jewelry citation to Hills WOODS, Wayne Defendant Ind., Mfg. v. Felco Jewel N.W.2d 153 Appellant. (S.D.1983),which, applied to the facts 14536. No. of this sustain the majority would opinion’s viewpoint. Supreme Court of South Dakota. Argued Jan. 1985. FOSHEIM, (dissenting). Chief Justice Sept. 4, Decided I present dissent. Lees’ action is res 15, 1985. Oct. Rehearing Denied judicata. judicata prevents doctrine of res relitigation actually litigated of an issue properly
which could have been raised
determining proper action. Black Hills
Jewelry Manufacturing Co. v. Felco Jew-
elry Industries, Inc.,
(S.D.1983). key question is whether wrong redressed is the
same in both Id. actions.
Here it is wrong sought clear that the
be remedied in Lees’ both of actions is the they
same: stopped want Schultz
draining water from his land onto their
land. Following first
court found “there no evidence that
water would unreasonably damage [the Though land.” Mother Nature has
Lees’]
perhaps proved finding now to
wrong, doing nothing Schultz is more now
than at the time of the first action. The
Lees’ have day had their in court. That Cundy conclusive. See
Weber, 300 N.W.
(S.D.1941); see also Raschke v. DeGraff, 295-96,
(1965).