Lead Opinion
[¶1.] Landowners filed an inverse condemnation claim against the State of South Dakota (State) and the City of Sioux Falls (City) seeking damages and a permanent injunction due to flooding on Landowners’ properties. The circuit court bifurcated the issue of whether a constitutional damaging of property had occurred from the question of damages. Prior to the court trial on liability, Landowners and the City settled. The court granted the State’s request to file a cross-claim against the City seeking indemnification and contribution. At the conclusion of the court trial, the court issued a judgment for Landowners. The court dismissed the cross-claim finding the State failed to prove that the City was liable. The question of damages was presented to a jury. After a four-day trial, the jury found the flood permanently damaged Landowners’ properties and awarded individual damages to each of the Landowners. The State appeals. We affirm.
BACKGROUND
[¶2.] Minnehaha and Lincoln Counties are drained by a natural watercourse referred to as the Spring Creek Tributary Drainage Basin. In 1949, the South Dakota Department of Transportation (DOT) built Highway 11. The Highway runs north and south through Lincoln and Minnehaha Counties and across the natural waterway known as Spring Creek. The State maintains sole control over Highway 11. At the time of construction, the DOT installed various culverts, including two 48-inch culverts and one 24-inch culvert, to permit the Spring Creek Tributary, which flows in a southeastern direction, to flow under Highway 11 into Spring Creek.
[¶3.] All of the Landowners’ properties are located on the west side of Highway 11, north of the intersection of Highway 11 and 85th Street, in an area referred to as the Village of Shindler or Elmen Acres. The homes lie in a sub-basin within the Spring Creek Tributary Basin. They are separated from the greater basin by the natural lay of the land and a ditch block (driveway) south of the twin 48-inch culverts. The single 24-inch culvert drains surface water from the sub-basin. The 24-inch culvert is too small to drain water entering the sub-basin from outside sources.
[¶4.] Tn 2009, the DOT began planning a project to resurface a portion of Highway 11 near Landowners’ properties. Due to area residents’ complaints that the culverts were inadequate to effectively drain the Spring Creek Tributary, State engineers conducted a study of the twin 48-inch culverts. The engineers released their findings in the fall of 2009 in a Hydraulic Data Sheet. In making their determinations regarding the capacity of the culverts, the engineers utilized data contained within the 2008 Federal Emergency Management Agency (FEMA) Report Flood Plain Map. The FEMA Report included run-off data from the City. Based on their calculations, the engineers concluded that when water reached the flow rate of 275 cubic feet per second (cfs) or greater, water would pond behind the culverts to such an extent that it would pour over the ditch block to the south-and into the sub-basin.
[¶5.] The engineers determined that statistically a flow of 275 cfs would occur in an eight-year-rain event. In other words, it was likely to occur once every eight years with a 12.5% chance of occurrence in any given year. The Hydraulic Data Sheet provided that a 100-year-rain event would involve water flowing towards the culverts at 803 cfs. Á 100-year-rain event would have a 1% likelihood of occurring each year. The hydraulic standard is to keep the 100-year-flood elevation below the top of Highway 11. The Hydraulic Data Sheet concluded that if water flowed over the ditch block, it would flood into the.sub-basin containing Landowners’ properties. Once water entered the sub-basin, it could drain only through the 24-inch culvert designed to handle a flow of 40 cfs.
[¶6.] Upon completion of the study, the State proceeded in 2010 with its resurfacing project on a portion of Highway 11 near Landowners’ properties. During the resurfacing, leaking joints in the two original 48-inch culverts were repaired, The original culverts were then reset in the same general location, but slightly lower. No other alterations were made.
[¶7.] On July 29 and 30, 2010, just a few months after the project’s completion, a significant amount of rain fell in the Spring Creek Tributary Basin causing flooding, which damaged Landowners’ real and personal properties. An official rainfall measurement for the basin is unavailable. The National Weather Service (NWS) at the Sioux Falls airport, however, measured a total of 0.72 inches received on July 29. On July 30, a total of 2.23 inches of rain fell, which is considered a ten-year-rain event. The heaviest rainfall occurred during the early morning of July 30,'when 1.9 inches fell over a two-hour period, which is considered a flve-year-rain event. Prior to these events, Landowners had not experienced surface flooding.
[¶8.] In November 2010, Landowners filed a complaint and later an amended complaint for damages and a permanent injunction. They asserted claims of negligence, trespass, and inverse condemnation against the State and the City. The State responded by filing an answer and a motion to dismiss. The State also filed a motion for summary judgment arguing the doctrine of sovereign immunity barred the Landowners’ claims. The State alleged it was immune because Landowners’ claims arose out of the design and engineering of a South Dakota public roadway. The circuit court denied both of the State’s motions.
[¶9.] Prior to trial and upon consideration of this Court’s decision in Rupert v. City of Rapid City, Landowners filed a second amended complaint dismissing their tort claims of negligence and trespass.
[¶10.] The issue of liability was tried before the circuit court on February 18-20, 2014. During trial, Landowners testified and presented expert testimony from Arthur Umland, former lead forecaster for the NWS; Kevin Goeden, program manager for the office of bridge design for the DOT; Jon Peters, floodplain administrator and Geographic Information System administrator for Lincoln ¡County; Mark Mainelli, civil engineer; and Kevin Goff, licensed professional engineer at Clark Engineering & Consulting. The State presented expert testimony from Bruce Crumb, lead highway maintenance worker for the DOT; Chad Hanisch, professional engineer at Infrastructure Design Group; Donald Harmon, former chief meteorologist in charge of the NWS; and Dr. Dennis Todey, associate professor at South Dakota State University and State Climatologist.
' [1Í11.] At the conclusion of the trial, the circuit court entered findings of fact, conclusions of law, and a judgment of liability; finding the State responsible for the flooding of Landowners’ properties. The court’s judgment provided, “The State acquires no estate or property interest, ip the land of [Landowners].”
[¶12.] On the question of liability, the circuit court found that the culverts were “of insufficient size to handle the drainage needs of Spring Creek Tributary.” And but for the construction of Highway 11 - on a ■berm; the “natural drainage of the Spring Creek Tributary [B]asin ... would not have caused any damage to” Landowners’ properties. Specifically, the court found that the two 48-inch culverts were equipped to handle an eight-year-rain event. An eight-year-rain event would cause “water [to] back up behind the culverts to 'such a degree that it would over-top the ditch block” near the culverts and crest over Julie Drive. If Julie Drive was overtopped, water flowed directly into the sub-basin containing Landowners’ properties. The sub-basin was drained' only by a single 24-inch culvert, which the court found inadequate to drain the closed basin caused by the construction of Highway 11. Based upon the evidence presented, the circuit court found that the “State knew or should have known that an eight-year event and above would cause flooding to [Landowners’ properties] as a result of the Highway 11 blockage of the natural drainage.” The court further found that the design pushed water into the closed sub-basin to avoid overtopping and damaging Highway 11. Based on the available data, the State decided to pool water behind Highway 11 to slow the flow of water to downstream locations.
[¶13.] At the conclusion of the court trial, the court dismissed with, prejudice the State’s cross-claim for indemnity and contribution. The court found that the State failed to prove' its claim that the urban development on the south side of Sioux Falls caused the extra run-off and contributed to the flood. The State failed to present any evidence quantifying the amount of water caused by the urbanization. The court determined that the State had “no legal or equitable right to indemnity from the City.”
[¶14.] A jury trial was held on Landowners’ request for damages from December 15-18, 2014. The jury determined the flood waters caused permanent damage to the Landowners’ real and personal properties and calculated damages individually for each of the Landowners, Final judgments were prepared and entered in January 2015 by the circuit court.
[¶15.] The State appeals and we restate the issues as follows:
1. Whether Landowners’ claims were barred by sovereign immunity.
2. Whether the State’s construction of South Dakota Highway 11 and accompanying culverts caused the damage to Landowners’ properties in violation of the South Dakota Constitution, article VI, §. 13.
3. Whether the State is entitled to seek contribution or indemnification against the City due to Landowners’ settlement with the City.
4. Whether the State has a drainage easement over Landowners’ real estate.
ANALYSIS
1. Whether Landowners’ claims were barred by sovereign immunity.
[¶16.] The- State maintains that the circuit court should have dismissed Landowners’ Article VI, § 13 claims based upon the doctrine of sovereign immunity. The State argues that sovereign immunity applies because Landowners’ claims involved the design, construction, and maintenance of public highways.
[¶17.] In Truman, we stated that “[s]overeign immunity is the right of public entities to be free from liability for tort claims unless waived by legislative enactment.” Id. ¶ 9 (emphasis added). Landowners in the present case dismissed their tort claims, leaving only the inverse condemnation claims. Because there were not any tort claims pending, the State cannot raise the affirmative defense of sovereign immunity. Indeed, we held in Rupert that Article VI, § 13 of the South Dakota Constitution “essentially abrogates sovereign immunity.”
[¶18.] Citing Hannaher v. St. Paul, Minneapolis & Manitoba Railway Co.,
[¶19.] The present case is distinguishable because there is not any evidence in the record that Landowners, nor their predecessors in interest, were compensated for the condemnation of property used to construct Highway 11. The record is completely devoid of the circumstances under which the State acquired the land to construct Highway ll.
[¶20.] This Court- provided in Rupert that when a condemnor validly exercises its authority, the condemnor’s “actions cannot be deemed ‘tortious’ or in violation of any ‘duty’ that is necessary to support a tort.”
2, Whether the State’s construction of Highway 11 and accompanying culverts caused the damage to Landowners’ properties in violation of the South Dakota Constitution article VI, § 13.
[¶21.] The State challenges the circuit court’s determination that its actions caused water to invade Landowners’ properties. Asserting that a number of the circuit court’s findings of fact were clearly erroneous, the State submits that the court failed to correctly analyze the technical data presented by the State’s experts. The State also argues that numerous supervening causes unrelated to the State’s conduct led to the flood. Further, the State contends that Landowners must prove that the State engaged in direct and substantial action or abuse to prevail.
[¶22.] In addition to this causation argument, the State contends that Landowners failed to satisfy the requirements of the consequential damages rule as set forth in Krier v. Dell Rapids Township,
a. Did the construction of Highway 11 cause water to invade Landowners’ properties?
[¶23.] The State alleges that the duty to show both actual and proximate causation is implicit in inverse condemnation. We agree.
[¶24.] At trial, Landowners presented expert testimony on the issue of causation through engineer Mark Mainelli, whom the circuit court found to be credible. Mainelli created a model of the drainage as it existed on July 29-30, 2010, and of the basin before the construction of Highway 11 using a software packáge commonly used by the Army Corps of Engineers for hydraulic studies and FEMA data. Mainelli concluded that without the Highway 11 blockage, the water would not have gone over the ditch block south of the 48-inch culverts, down the. west ditch of Highway 11, .causing damage to Landowners’ properties. Mainelli also Created a- strip map showing the elevations of the driveways and culverts within the sub-basin containing Landowners’ properties. Mainelli explained to .the jury that once the water overwhelmed the twin 48-inch culverts,.it topped the ditch block to the' south and then ran over each of the subsequent ditch blocks as they were all of slightly lower elevation. The single 24-inch culvert in the sub-basin was inadequate to handle this flow.
[¶25.] Landowners also called the State’s chief bridge engineer, Kevin Goeden, who testified about the hydraulic study conducted prior to the resurfacing project. He indicated that the study determined that water would overtop the ditch block to the south of the culverts at 275 cfs, which was an eight-year-rain event.
[¶26.] The dissent concludes that Landowners failed to establish that their losses were foreseeable. “[F]or proximate cause to exist, the harm suffered must be found to be' a foreseeable consequence of the act complained of.” Hamilton v. Sommers,
[¶27.] The dissent begins with the proposition that “Landowners had the burden of proving their losses were foreseeable (i.e., probable) at the time the State constructed Highway 11.”
[¶28.] The circuit court appropriately considered all of the attending circumstances from the time the flooding occurred back to the time the State constructed Highway 11. Specifically, the court found that the State constructed Highway 11 across the natural watercourse of the Spring Creek Tributary; that the State installed two 48-inch culverts and one 24-inch culvert to accommodate drainage of the basin; that, during a 2010 resurfacing project of Highway 11, an analysis of the culverts showed that flooding would occur during an eight-year-rain event; that the culverts were of insufficient size to handle the drainage needs of the Spring Creek Tributary; and that, based on the foregoing “the State knew or should have known that an eight year rain event and above would cause flooding to [Landowners] property as a result of the Highway 11 blockage of the natural drainage.” Although the court did not use the precise terms of “foreseeability” or “natural and probable sequence,” the court’s findings are sufficient to sustain a finding of foreseeability for the purpose of proximate cause.
[¶29.] The State challenges these and several other findings, which served as the basis for the circuit court’s determination of liability, as erroneous. In total, the court entered 72 findings of fact. It is well-established “that the credibility of witnesses and weight of evidence is for the trial court and that a reviewing court accepts that version of the evidence, including the inferences that can be fairly drawn therefrom, which is favorable to the trial court’s determination.” In re Estate of Dokken,
[¶30.] The State specifically attacks the circuit court’s findings of fact 40 and 41, in which the court discounted the testimony of Dr. Todey. As the State Climatologist, Dr. Todey tracks and measures precipitation in South Dakota. He also coordinates a network of volunteers who measure precipitation once per day and record the results online. The network is referred to as the Community Collaborative Rain, Hail, and Snow Network (“CoCORaHS”). Prior to trial, Landowners filed a motion to prohibit Dr. Todey from testifying and presenting CoCORaHS data. Landowners claimed the data was inaccurate as it did not include the time and amount of 'the precipitation necessary to détermine intensity and compute flow rates. Although the circuit court permitted Dr. Todey’s testimony, the court ultimately rejected it. Instead, the court found credible the rainfall data of Landowners’ expert Art Umland, a former meteorologist for the NWS for 30 years. In forming his opinions, Umland relied on hourly measurements taken at the NWS station in Sioux Falls along with other statistical data. Umland determined that the total rainfall on July 30 was 2.23 inches, which was a ten-year-rain event. Of that total, 1.9 inches fell in a two-hour time frame, which Umland classified as a five-year-rain event. The court weighed the credibility of the expert witnesses and the reliability of their findings. This is uniquely the function of the circuit court. From our review of the record we are not persuaded .that the circuit court’s credibility determinations or findings on causation were clearly erroneous.
[¶31.] The State, citing Smith v. Charles Mix County, next argues that intentional government conduct is necessary to prove the element of causation.
[T]he owner of the dominant land, in the éxercise of a reasonable use of fiis property, has the right by means of ditches and drains on his property to accelerate the flow of surface waters into a natural watercourse, and into which such waters naturally drain, provided he does not permit an accumulation of water on his property and cast the same on the ser-vient land in unusual or unnatural quantities.
[¶32,] The State argues that causation in this case has not been established as there is no evidence of intentional conduct. While intentional conduct occurred in Smith, we did not hold that it was a necessary element for an inverse condemnation claim. We addressed this issue in Rwpert. The City of Rapid City, relying on City of Brookings v. Mills,
[¶33.] The circuit court found that the State’s liability herein arose from the construction of the' Highway 11 roadbed that obstructed the natural watercourse without creating a sufficient passageway for drainage. The State’s design pooled'water behind Highway 11 and delayed the water’s arrival to downstream locations. The circuit court found that'but for'the Highway 11 obstruction, the rainfall of July 29-BO, 2010, would not have caused any damage to Landowner’s properties. The State knew, or should have known, that obstruction of the Spring Creek Tributary, absent adequate drainage, would cause flooding.
b, Supervening causes. .
[¶34.] As a further challenge to the court’s finding of causation, the State alleges that a number of supervening causes, unrelated to the State’s conduct, caused the damage to Landowners’ properties. The State alleges the City’s failure to manage upstream run-off caused by urbanization; historic rainfall and soil saturation in July of 2010; and the rainfall event on July 29-30 combined to cause the intensity of the flood. While the State did not plead a supervening cause, it did challenge causation. In making its liability determination, the circuit court considered the State’s evidence on these topics and did not find them to be established by -the evidence. Specifically, the court found that the rainfall data presented by the State was “not scientifically reliable” as discussed above, supra ¶30, and that “the State failed to present sufficient evidence-as to the specific effect [that urbanization had] on the flooding that occurred[.]” After a complete review of the record, we are not left with “a definite and firm conviction that a mistake has been made.” Schieffer,
c, Failure■ to meet Krier’s consequential damages rule.
[¶35.] The State argues, pursuant to our holding in Krier, that Landowners failed to establish the injury to their properties was peculiar and not of a kind suffered by the public as a whole. Additionally, the State contends that Landowners suffered the same risk shared by “all members of the public who live in areas affected by extreme rainfalls.” Arguing that even properly constructed culverts can be overwhelmed by intense flood waters, the State asserts that “[g]overnment entities should not be held strictly liable for such damages.”
[¶36.] In Krier, landowners filed a claim for inverse condemnation alleging that a highway resurfacing project made “the ruts and.potholes [on the road] worse” and caused “an accumulation of dust and dirt [to invade Krier’s] property” that diminished its value.
[¶37.] In contrast, the circuit court herein found that Landowners produced sufficient evidence to establish a distinct injury of a kind not suffered by the general public. The court found that the State’s design pushed water into the closed sub-basin to delay the arrival of water downstream and to avoid overtopping Highway 11. This sub-basin was drained by a single 24-inch culvert which was “exceedingly slow to drain.” Accordingly, the circuit court found that the “State created a condition that peculiarly caused flooding in the sub-basin drained by the 24[-inch] culvert.” No evidence was presented by the State that other area residents or the public as a whole suffered similar flooding. From our review of the evidence produced at trial, we cannot say that the circuit court erred in applying the consequential damages rule set forth in Krier.
3. Whether the State is entitled to seek contribution or indemnification against the City due to the City’s settlement with Landowners.
[¶38.] The State contends that pursuant to SDCL 15-8-15.2,
[¶39.] The dispositive issue that this Court must answer is whether the State was entitled to file a cross-claim against the City for contribution under the Joint Tortfeasor’s Act. Relying primarily on a single district court case from Illinois, Warner/Elektra/Atlantic Corp. v. County of DuPage,
[¶40.] The Act specifically provides for the right of contribution between “two or more persons jointly or severally liable in tort for the same injury.” SDCL 15-8-11 (emphasis added). “[I]f the language of a statute is clear, we must assume that the legislature meant what the statute says and we must, therefore, give its words and phrases a plain meaning and effect.” Caldwell v. John Morrell & Co.,
[¶41.] Moreover, even if the State was entitled to contribution under the common law relating to inverse condemnation, it failed to prove entitlement to that right. The court found that while the State alleged the south side of the City’s urban development caused extra run-off contributing to the flooding, it failed “to present any evidence as to the amount of increased water caused by the urbanization of the City of Sioux Falls.” The court also found the testimony of the State’s expert on this issue “unconvincing and lacking in reliability.” Finding no evidence of any act by the City to cause Landowners’ damages, the court concluded that “[n]o equitable-reason exists for the City to contribute to the damages under any legal theory, case, or statute.” The circuit court, as the finder of fact, was “free to reasonably accept or reject all, part, or none” of the parties expert testimony. Sauer v. Tiffany Laundry & Dry Cleaners,
[¶42.] Applying common-law principles, the dissent correctly points out the inequity of permitting Landowners to benefit from their settlement with the City as they will have recovered more than their actual losses. Infra ¶83. Although the law on eminent domain does not entitle Landowners to recover more than their total losses, the State did not make that claim to the trial court. Rather, the State asked the court to submit the State’s claim for contribution and indemnity from the City to the jury for apportionment. The State did not ask the trial court to reduce the judgment Landowners recovered from the State based on the theory that Landowners recovered more than their actual losses. This Court has provided that, on appeal, it “may require a reduction or remission of. the amount awarded as a condition of affirming the judgment” but only “where it appears that the amount awarded is excessive and is based on evidence that is speculative and conjectural.” Bloom,
[¶43.] Further, on appeal, the State only seeks recovery under the Joint Tortfea-sor’s Act. Recovery under the Joint Tort-feasor’s Act proyides only one remedy, and that remedy is only against the joint tort-feasor who has not paid its proportional share, in this case the City. See SDCL 15-8-12 (“The right of contribution exists among joint tort-feasors.”). The Act does not provide for recovery against the party that was injured. .
4. Whether the State has a drainage easement over Landowners’ real estate.
[¶44.] Finally, relying on Heezen v. Aurora County, the State contends that the circuit court erred in refusing to grant the State a “permanent drainage easement” over- Landowners’ properties.
[¶45.] At the conclusion of the trial on liability in this cáse, the court entered a judgment providing that “[t]he State acquires no estate or property interest in the land of [Landowners]." The matter then moved :to the damages phase. After the jury verdict awarding permanent damages was returned,' the State submitted1 pro-: posed judgments to the trial court. Each- of the State’s proposed judgments contained the following language: “As a result of the1 permanent taking, [the] State has acquired a drainage' easement over the subject property in perpetuity.” The trial court' refused the State’s proposed judgments. Throughout the bifurcated trials on liability and damages, the State had never requested. a permanent drainage easement over Landowners’ properties. The State failed to notice, plead, value, describe, or offer a legal basis for such an easement.
[¶46.] In Heezen, Landowners brought a claim against Aurora County for inverse condemnation alleging both temporary and permanent damages,
[¶47.] Although Heezen generally stands for the proposition that an award of both permanent damages and an injunction is inconsistent, it also suggests that a condemning authority obtains the right to continually damage the property when permanent damages are awarded in an inverse condemnation claim. See id. This is compatible with our definition of permar nent damages. Damage to real property is permanent when it is “of such a character and existing under such circumstances that it will be presumed to continue indefinitely Rupert,
■ [¶48.] But the present case is distinguishable from Heezen. In Heezen, the Court merely held that the award of both injunctive relief and permanent damages was inconsistent. It reversed on this basis. The Court did not grant an easement, nor did it remand with .instructions to enter an easement. Rather, the Court declared that the condemnor had a “right to permanently flood [the property] to the extent of the flooding here involved.” Heezen,
[¶49.] We agree with the general notion that the State can obtain an easement in an inverse condemnation action when permanent damages are awarded.
[¶50.] Because of these unanswered questions, we rely on Heezen and the principle of res judicata to provide more specific relief in this case. Because Landowners were awarded permanent damages, their properties cannot be twice the subject of compensation for similar recurrent flooding, in instances where permanent damages are awarded for a harm that “will continue indefinitely into the future” the principles of res judicata apply to prevent future claims for similar damages. 1 Dan B. Dobbs, .Law of Remedies § 5.11(1), at 821. (2d ed. 1993); see also Owen v. City of Springfield,
CONCLUSION
[¶51.] Landowners had a right to sue for . just compensation under the theory of inverse condemnation directly pursuant to Article VI, § 13 of the South Dakota Constitution. Sovereign immunity is “essentially abrogated” for such claims. The circuit court found that Landowners’ damages were caused by the State’s construction of Highway 11 which obstructed the natural drainage of the Spring Creek Tributary. The damages were foreseeable. The State’s design provided insufficient passageway for drainage to the natural watercourses. The findings are supported by the record and not clearly erroneous. The flood damages suffered by Landowners were peculiar to their properties and not of a kind suffered by the public as a whole. The State was not entitled to contribution from the City. Landowners were fully compensated by the jury for the diminution in value of their property caused by the flood and the properties’ susceptibility to recurrent flooding. Although the State has not acquired an easement to flood the properties, res judicata will bar any future claims for damages caused by flooding to the same extent and in the same manner as proven at trial for which Landowners were compensated.
[¶52.] Affirmed.
Notes
; Some Landowners had experienced prior flooding in their homes due to sump pump issues.
. Specifically, the State asserts that sovereign immunity has only been waived to the extent such damages are covered under the State’s ■ risk-sharing pool. See SDCL 21-32A-2 (granting sovereign immunity except where the State , participates in a risk-sharing pool or insurance). The State submits that its risk-sharing pool excludes "torts arising from ... the engineering or design of any public roadway or pub[l]ic transportation project.” (Emphasis added.) For a thorough discussion of sovereign immunity for tort and the State’s risk-sharing pool see Kyllo v. Panzer,
. The decision in Hannaher predates the inclusion of the Damage Clause to Article VI, § 13. The Damage Clause was not adopted until the Constitutional Convention of 1889. See Benson v. State,
. The dissent is premised on the erroneous assumption that the taking and damaging to Landowners' properties occurred in 1949— when Highway 11 was constructed. However, ■there is no evidence in the record as to what was allegedly taken, who owned the land at the time of the alleged taking, and whether the alleged taking overlapped with the rights of the Landowners herein. There is no evidence in the record that a taking eyen occurred in 1949.
The present case is also distinguishable from Johns v. Black Hills Power, Inc.,
Further, this case is distinguishable from Palazzolo v. Rhode Island,
Instead, this case is more similar to Smith v. Charles Mix County,
. Several jurisdictions apply the common law tort principle of causation to inverse condemnation claims. See, e.g., Bakke v. State,
. Flows of 803 cfs would constitute a 100-year-rain event.
. The dissent is premised on the unsupported notion that a taking in this case occurred in 1949 when the State constructed Highway 11. See supra ¶¶ 18-19. Here the dissent builds on its point by concluding that Landowners’ damages must have been foreseeable at the time of the taking in 1949. However, Landowners alleged in their complaint that the damaging to their properties occurred in 2010. The State did not dispute the temporal aspect' of Landowners’ complaint. And, because it was undisputed, the court did not make any findings of fact or conclusions of law on this issue. Again, we decline to address the issue raised by the dissent when the issue was not raised or briefed by the parties and the trial court was not given an opportunity to rule on the issue. See supra ¶ 19.
.The dissent cites 4A Julius L. Sackman, Nichols on Eminent Domain § 14.03[2][c][iv] (3d ed., rel. 124—11/2016) for the principle that "[djamages that are too remote to have been foreseeable at the time of the taking ... are not consequences of the taking and are generally not recoverable as just compensation." (Emphasis added.) But here the date, occurrence, and circumstances of any taking in 1949 are unknown. The damaging in this case occurred after Landowners’ properties were flooded in 2010. The residents of Elmen Acres complained that the culverts were inadequate to effectively drain the Spring Creek Tributary before the flooding event. These complaints prompted a drainage study in 2009. The Hydraulic Data Sheet from the study indicated that during an eight-year-rain event, water would pond behind the culverts to such an extent that it would pour over the ditch block to the south and into the sub-basin. These are relevant factors to consider in determining whether the damage to Landowners’ property was foreseeable.
The dissent also cites to Hyde v. Minn., Dak. & Pac. Ry. Co.,
. SDCL IS—8—15.2 provides in pertinent part, that "[i]n determining the percentages of fault, the trier of fact shall consider both the nature of the conduct of each party at fault and the extent of the causal relation between the conduct and the damages claimed.”
. The circuit court permitted the State's cross-claim at the liability phase of the trial, but it ultimately concluded that the State failed to prove that the City was liable and dismissed the cross-claim before the case went to the jury.
. See, e.g., K & W Elec., Inc. v. State,
. Under .eminent domain procedures, the condemning authority must describe the property to be taken or damaged and clearly state the purpose for which the property is being taken or damaged. SDCL 21-35-2; see also Lawrence Cty. v. Miller,
., "[T]he doctrine of res judicata bai;s any ‘attempt to relitigate a cause of action by the parties or one of the parties in privity to a party to an earlier suit.’ ” Miller,
Concurrence Opinion
(concurring specially).
[¶58.] I join the Court’s opinion. I write to emphasize that this case was not tried on the numerous, new theories raised by the dissent. It was not tried on the theory that as a matter of law, landowners were barred from recovery in inverse condemnation because they failed to produce evidence showing that the precise damage to their homes in 2010 was foreseeable in 1949 as a result of the State’s construction of Highway 11. It was also not tried on:
• the theory that landowners were not entitled to sue because the right to damage their properties was within the scope of an assumed 1949 taking;
• the theory that the right to compensation for the flooding in 2010 belongs only to the landowners who owned the properties in 1949 and not the plaintiffs;
• the theory that the State was acquiring a flooding easement; and
• the novel theory that under the law of contribution and indemnity, a plaintiffs recovery must be directly offset by any settlement received from code-fendants, including codefendants that have not been determined to be liable.
Although some of these theories present interesting questions for a future case, they were not the issues upon which this case was tried. And because, with the exception of the easement issue, these specific theories were also not briefed on appeal,
[1159.] This was an extremely complicated-and highly technical case. It was tried on contested facts ^ with many experts opining on the cause of the flooding and-the defendants’ roles in causing it. But those were factual matters, and there was substantial conflicting testimony on both sides of the issues. The case was fairly tried, and the circuit court and jury were within their authority to have adopted either view. .There was certainly no reversible error in the circuit court’s failure to enter findings of fact and conclusions of law on theories it was never asked to consider.
. On appeal, the State argues there was no proximate cause because (1) landowners’ weather expert testimony should have been disregarded, (2) the State’s weather expert was more credible, (3) runoff from urbanization in the city contributed to the flood, (f) the State’s design of the highway was reasonable and in compliance with engineering standards, (5) the intensity of the rain was a rare event that was a supervising cause, and (6) the flooding was caused by a combination of (3) and (5).
Dissenting Opinion
(dissenting).
[¶60.] I respectfully dissent. The State’s construction of Highway 11 in 1949 is not a proximate cause of Landowners’ loss in 2010 because such loss was not the natural and probable consequence of the construction of Highway 11. And if it was the natural and probable consequence, then such loss was already within the scope of the State’s right to construct Highway 11. That aside, if the State is required to compensate Landowners, then under the facts of this case, the State necessarily has a permanent drainage easement. Finally, Landowners’ settlement with the City should have been deducted from the amount of compensation awarded by the jury. Therefore, I would reverse.
1. Landowners did not prove the construction of Highway 11 is a proximate cause of their loss.
[¶61.] The State argues that the construction of Highway 11 in 1949 is not a proximate cause of Landowners’ loss in 2010. According to the South Dakota Constitution, “Private property shall not be taken for public use, or damaged, without just compensation ....” S.D, Const, art. VI, § 13. “An inverse condemnation action is an eminent domain proceeding initiated by the property owner rather than the condemner.” Schliem v. State ex rel. Dep’t of Transp.,
[¶62.] As' the Court notes, “[pjroximate cause is defined as ‘a cause that produces a result in a natural and probable sequence and without which the result would not have occurred.’ ” Howard v. Bennett,
[¶63.] In this case, Landowners had the burden of proving their losses were foreseeable (i.e., probable) at the time the State constructed Highway 11. Hyde v. Minn., Dak. & Pac. Ry. Co.,
[¶64.] Landowners did not provide any evidence relevant to the question of foreseeability. The circuit court’s factual findings do not address this issue.
[¶65.] In light of the foregoing, Landowners are not entitled to compensation. As previously noted, Landowners had the burden of proving proximate causation. 9 Rohan & Reskin, supra ¶ 61,-§ G34.03[l], While Landowners’ expert testimony establishes that the construction of Highway 11 is a but-for cause of Landowners’ loss, it' does not address the question whether Landowners’ loss' in 2010 is the natural and probable consequence of the construction of Highway 11 in 1949. In other words, Landowners’ evidence does not address foreseeability—a necessary component of proximate causation. Hamilton,
In a philosophical sense, the consequences of an act go forward to eternity, and the causes of an event go back to the dawn of human events, and beyond. But any attempt to impose responsibility upon such a basis would result in infinite liability for all wrongful acts, and would “set society on edge and fill the courts with endless litigation.”
Holmes v. Sec. Inv’r Prot. Corp.,
2. Even if the construction of Highway 11 is a proximate cause of Landowners’ loss, their claims are barred by sovereign immunity.
[¶66.] The State argues that Landowners’ claims “sounded in tort” and are therefore barred by the doctrine of sovereign immunity. Landowners respond that their cause of action is indeed one of inverse condemnation. While the State is generally immune to liability for the torts of negligence and trespass, the State cannot avoid liability when it invokes its sovereign power of eminent domain. See Rupert v. City of Rapid City,
[¶67.] As we recently explained, “a landowner is not entitled to compensation under Article VI simply because he has suffered some loss or his property has been devalued as a result of state action.” Schliem,
[¶68.] This Court’s predecessor decided a substantially similar issue in Hannaher v. St. Paul, Minneapolis & Manitoba Railway Co.,
The company condemns or purchases its right of way for railroad purposes. It builds its road, with its enbankments [sic], ditches, and culverts, for railroad purposes, and it is only required to construct its road in a manner suitable and proper for railroad purposes, And in payment for its right of way it is required to make compensation for the injuries sustained by the adjacent landowners by the use of such right of way granted or condemned for railroad purposes. ... [T]he company is required to pay such damages as may reasonably and naturally follow from the occupation of its right of way for railroad purposes .... It follows, as a necessary corollary, that, if the injury complained of was a natural and probable result of the construction of the railroad along, the right of way granted by plaintiffs, it was compensated for in the consideration of the grant, and an action cannot be maintained therefor.
Id. at 16,
[¶69.] In light of the foregoing, Landowners are not entitled to compensation. If the flooding that occurred is a natural and probable consequence of the State’s construction of Highway 11, then such is within the scope of a taking that occurred in 1949. See Hannaher,
3. If Landowners are entitled to compensation, the State necessarily has a drainage easement.
[¶70.] Alternatively, the State argues that if the jury verdict is affirmed, Landowners should not be compensated for future floods. Quoting Heezen v. Aurora County,
[¶71.] This issue turns on understanding the difference between government action that takes property and government action that merely damages property. Property is taken when the State appropriates it for public use; property is damaged when the State does-not appropriate it but nevertheless deprives its owner of its use. See Schliem,
[¶72.) Landowners’ pleadings and argument allege the State appropriated their property for public use. Throughout this litigation, Landowners have continually asserted—and the circuit court found—that the State caused their properties to be invaded by water and that such invasions would recur indefinitely. It is well established that the physical invasion of property is an appropriation of that property— i-.e., a taking, E.g., Schliem,
[¶73.] In light of Landowners’ pleadings and argument, this case should be resolved like Heezen, which is materially indistinguishable from the present case. In Heezen, several property owners filed an inverse-condemnation action alleging that the regrading of a highway diverted water into a lake from a watershed that had not previously drained into the lake. Heezen,
In trying and deciding [the complaints,] the measure of damages applied by the court was the difference in market value of these farms before and after the flooding. This is the. measure of compensation which governs where part of a tract is. permanently taken, or damaged. From .this it would follow that the county. was being required to pay for the right to permanently flood these farms to the extent of the flooding here involved. The injunctive and mandatory provisions of these judgments are inconsistent with such right.
Id. at 206-07,
[¶74.] As in Heezen, the measure of compensation awarded in the present case was the difference in the- fair market value of the properties before and after the flooding. Thus-, Landowners are being compensated for a permanent taking. “From this it would follow that 'the- [State- is] being required to pay for the right to permanently flood these [properties] to the extent of the flooding here involved.” Id. (emphasis added). In practical terms, if the State is required to compensate Landowners for a permanent taking, then the State has simply paid for the right to leave Highway 11 as it has existed for the last 68 years. Under Heezen, no more is required to define the property interest that Landowners assert the State appropriated in this case.
[¶75.] Despite claiming to “rely on Heezen,” supra ¶ 50, the Court disregards a number of widely accepted principles of inverse condemnation. "While the-Court accepts the circuit court’s findings that the State physically invaded Landowners’ land and will do so again during every eight-year-or-greater rain event, it nevertheless claims “the State failed to define the scope and boundaries of any purported easement or present evidence on valuation.” Supra ¶ 49. According to the Court, “the principle of res judicata ... providefs] more specific relief in this case.” Supra ¶ 50. There are several problems with the Court’s analysis.
[¶76.] First and foremost, it is erroneous to view the State’s claim of an easement as a counterclaim for which this Court may choose a particular “relief.” As explained above, the premise of Landowners’ claim is that the State permanently appropriated their land for public use. Thus, if Landowners are entitled to compensation based on their claim, the State necessarily already has an easement (i.e., a right to use Landowners’ property for a specific, limited purpose) by virtue of its sovereign power of eminent domain. And if the State does not already have an easement, then there is no basis for compensating Landowners.
[¶77.] The Court’s view also incorrectly assigns the burden of proof to the State. In an inverse-condemnation action, it is the aggrieved property owner who has the burden of proving the State appropriated a property interest. 5 Julius L. Sackman, Nichols on Eminent Domain § 18.02[2][a] (3d ed., rel. 112—12/2013). Such proof necessarily includes specifically identifying the property interest taken. If the property owner is successful, the property interest formally appropriated by the State is simply that identified by the property owner. As in Heezen, because the burden of proof is on the property owner, the property interest appropriated by the State is whatever the property owner proves the State took. See
[¶78.] The Court’s claim that the State failed to introduce evidence -establishing the before-and-after market values of the properties is similarly problematic. “On the question of damages in an inverse condemnation proceeding, the burden of proof is on the landowner.” 3 Julius L. Sackman, Nichols on Eminent Domain § 8.01[5][d] (3d ed., rel. 96-12/2009). By not introducing evidence of valuation, the State merely runs the risk of paying more than it should by not disputing the property owner’s valuations.
[¶79.] Additionally, the Court does not explain any meaningful distinction between Heezen and the Court’s claim-preclusion approach.
[¶80.] If Landowners were entitled to compensation, I would adhere to this Court’s opinion in Heezen. As pleaded and argued by Landowners, the State appropriated a property interest by permanently burdening Landowners’ properties with recurring, physical invasions of water. Although issue preclusion may also bar Landowners from bringing another claim for compensation in the future, the existence of a second basis for denying future relief to Landowners does hot solve' the Court’s analytical problem of concluding the State took but does hot possess Landowners’ property. Even if Landowners were entitled to compensation, I would reverse the circuit court on this issue and recognize the State’s easement—i.e., the right to use Landowners’ properties for the specific, limited purpose of flooding to the extent and frequency proved by Landowners. •
4. If Landowners are entitled to compensation, the State’s cross-claim should have been presented to the jury.
[¶81.] Finally, the State argues the circuit court erred by dismissing the State’s cross-claim against the City of Sioux Falls. Likening itself and the City to joint tort-feasors, the State concludes any compensation awarded to Landowners should be offset by the City’s liability to Landowners. As the State points out, Landowners’ complaint , treated the State, and City as joint condemnors,
[¶82.] The. Court , overlooks the common-law basis for extending tort principles (like those found in the Joint Tortfeasors Act) to an inverse-condemnation claim. As the Court correctly notes, it “is within our purview” to apply common-law principles to inverse condemnation. Supra ¶ 40. But under the common law, the total liability of joint condemnors cannot exceed the legal injury actually suffered, by a landowner.. This Court has long held that compensation “in an eminent domain case [is] not ‘ “manna from heaven”; [it] must be based on actual loss of value’ ” Rupert,
The just compensation required by the constitution to be made to the owner is to be measured by the loss caused .to him by the appropriation, He is entitled to receive the value of what he has been deprived of, and no more. To award him less would be unjust to him; to award him more would be wngust to the public.
Bauman v. Ross,
[¶83.] The Court further holds that “even if the State was entitled to contribution under the common law, relating to inverse condemnation, it failed to prove entitlement to that right.” Supra ¶ 41. But this holding is premised on the erroneous view that it is just for Landowners to receive more than the value of what they have been deprived of. Overcompensating Landowners is no more just than under-compensating them. Bauman,
Conclusion
[¶84.] Landowners are not entitled to compensation in this case. They did not offer any proof establishing that their loss in 2010 was the natural and probable consequence of the construction of Highway 11 in 1949; therefore, they did not meet them burden of, proving proximate causation. If their loss was a natural and probable consequence of the construction of Highway 11, then such was within the scope of the right acquired by the State to construct the highway. If Landowners are entitled to compensation, then the State necessarily has paid for a drainage easement. Finally, ’the circuit courts dismissal of the State’s cross-claim resulted in ovér-compensating Landowners. Therefore, I would reverse. ,
. The Court claims this issue statement “misapprehends how this Court views foreseeability as it relates to duty and causation.” Supra ¶ 27. According to the Court, "Landowners are not required to prove that their losses were foreseeable when the State constructed Highway 11 in 1949[.]” Id. There are several problems with this claim.
First and most importantly, the Court's claim directly contradicts this Court’s controlling precedent as well as other authorities. Compare Hyde,
. In their complaint, Landowners asserted that "[t]he population of Sioux Falls in 1,950 was approximately 52,699 and the surrounding metropolitan statistical area totaled 70,-910.” They also asserted that "[i]n 2010, the population of Sioux Falls was 156,500 and the municipal statistical area was 235,300.” Thus, according to Landowners’ pleadings, the Sioux Falls area experienced an increase in population of greater than 300% between the time of Highway 11 's construction and the flooding of Landowners’ properties in 2010.
. In fact, the circuit court's factual findings do not explicitly identify the act that amounted to condemnation, nor do they identify the date of taking, This alone warrants reversal and remand.
. The Court-concludes that “[although-the court did not use the precise terms of 'foreseeability' or ‘natural and probable sequence,’ the court's findings are sufficient to sustain a finding of foreseeability for the purpose of proximate cause." Supra ¶28. Yet, the only factual finding identified by the Court that even remotely addresses any concept of foreseeability is the circuit court’s finding that "the State knew or should have known that an eight-year rain event and above would cause flooding to Plaintiffs' property as a result of the Highway 11 blockage of the natural drainage.” Id. But as the Court acknowledges, this finding refers only to the adequacy of drainage at the time of the 2010 resurfacing project. This finding does not refer to the adequacy of drainage at the time Highway 11 was constructed in 1949—when the surrounding area was farmland, devoid of residences, and subject to runoff from a’ substantially smaller population base.’ The circuit court explicitly found that none of the properties at issue had ever flooded prior to 2010.
. There is no basis for a bright-line rule of compensation commencing in 1949. While this specific road was constructed in 1949, South Dakota has been constructing roads since statehood in 1889, and under the Court’s theory, South Dakota would assume liability to a private landowner who experiences such a flood loss no matter when the highway was constructed.
. See also United States v. Cress,
. Landowners argue their pleadings do not claim the State "took” property, However, the label used by Landowners is not disposi-tive. The question whether the State appropriated a property interest or merely infringed on one without appropriating it is determined by the facts of the case. See Rupert,
Landowners also argue the State may not appropriate a property interest outside of formal condemnation'proceedings. On the contrary, "[s]tate courts have defined ‘inverse condemnation’ ..... as a cause of action against a governmental defendant to recover the value of property that has been taken in fact by the governmental defendant, even though no formal exercise of the power of eminent domain has been attempted by the taking'agency.” 3 Julius ,L. Sackman, Nichols on Eminent Domain § 8.01[5][b][i] (3d ed., rel. 124-11/2016) (emphasis added); see also Agins v. City of Tiburon,
. The Court cites a single opinion from Missouri for its suggestion that the doctrine of claim preclusion can justify denying the State an easement for which it has been required to pay compensation. Supra ¶ 50 (citing Owen v. City of Springfield,
. Landowners filed a single complaint that named the State and City as codefendants, ■ alleging they worked together and were jointly- liable for Landowners' loss. Specifically, Landowners alleged:
3. ■ The Defendants [ (the State and the City)] have changed the natural flow in a manner that results in the flooding of Plaintiffs' property.
4. The Defendants ■ in co-operation have increased the volume of the flow of surface waters and speed resulting in the flooding of Plaintiffs'property.
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14. From 1949 until 2010, the City of Sioux Falls and the State of South. Dakota, in conclusion [sic] and jointly, planned for the growth of Sioux Falls and the drainage of surface waters into the natural drainage way of Spring Creek Tributary, which abuts the ,property of .the Plaintiffs.
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23. The Defendants must be restrained from placing surface waters from ■ Sioux Falls into the natural drainage way ....
In light of Landowners’ pleadings, the State and the City were codefendants on the issue of liability for Landowners' loss stemming from the July 2010 flooding, Because Landowners settled with the City, the State and City are joint condemners. Cf. Schick v. Rodenburg,
. The State’s cross-claim did not mention the Joint Tortfeasors Act. But it is hardly surprising that the State presents its argument in the form of tort principles. In the ■ complaint,- Landowners pleaded inverse condemnation only as an afterthought to their negligence and trespass claims, Landowners’ inverse-condemnation claim actually incorporated by reference their pleadings relating to negligence, despite the incompatibility of negligence and inverse-condemnation claims. See Hyde,
Dissenting Opinion
(dissenting).
[¶85.] I respectfully' join Chief Justice Gilbertson’s dissent. He- has captured the heart of the problem in his remarks on foreseeability. Supra ¶¶ 61-65. Any public improvement ■ undertaken by the state, whether 68* years ago (1949), or in the future, will result in essentially .unlimited exposure to .claims. This is-not what the framers of Article VI, § 13, had in mind.