*1 H9 on October was commenced within action three-year
30, 1987, stat- it was within Sylvia MIILLER and Miiller and Milen contemplated SDCL of limitations ute Younie, Dwight Younie and Maxine until December It was not 15-2-14.2. Appellees, Plaintiffs and Bank filed Rushmore State 1984—the date v. Ceasar’s, against financing statement its Rap- acquired its interest from Kiser’s and Donald who COUNTY OF DAVISON ac- “proposed” Herrick, id Motel Co.—that Appellants, Defendants and Bradsky tion of would become ineffective v. as “too late.” MITCHELL, Defendant CITY OF represent Bradsky continued to Whether Appellant. 10, 1987, when Kurylas up until November withdrawal,” gave Kurylas a “notice of he 16624, 16637. Nos. attorney-client relationship terminating Supreme Dakota. Court of South attorney- An jury question. is another relationship clearly can continue to client Argued Nov. 1989. though attorneys exist even other Decided Feb. “bankruptcy retained to handle have been spe “trial matters” or other proceedings,” Therefore, aspects
cial of a transaction. of material fact exist con
genuine issues attorney-client relationship,
cerning the
continuing representation, negligence. (S.D. Tappe, v. 419 N.W.2d
Schoenrock
1988);
Billars,
(S.D.1986). genuine issues of materi Since matters, concerning sum
al fact exist these improper.
mary judgment clearly Int’l, Tenneco, Inc., 410 Inc. v. Groseth Gordon, (S.D.1987); Bego v.
Great
MILLER, (dissenting). Justice generally join
I Justice Sabers’ dissent. however, not, 2. This join
I do his footnote time or the case to review our
is not the rule.”
interpretation of the “occurrence arises, Cameron, injury interpretation of "oc time the our in Staab v. decision (S.D. 1984), would bar an action to recover for cases. The uncon currence" and other similar injury injury. be the com The end result would will arise where the stitutional collision remedy injury plete in viola malpractice denial of a does not exist until more from the VI, negligence. 20 of the South Dakota years § tion of Article after the act of than three Co., Staab, during years See Zacher v. Budd the first three Constitution. accord with (S.D.1986). While the facts of this injured party a N.W.2d 122 would be unable to obtain situation, attorney present a we should injury case do not such because "an advantage opportunity to correct the malpractice take action for losses liable in a problem our deci proximate and avoid the collision of actually as a result of the sustained attorney." By Id. at 466. sions. conduct of the *2 Papendick, Douglas N. Davison Atty., appellants, for Davison Coun- States ty Herrick. and Donald Koch, Mitchell, appellant, City J. for Carl Mitchell. HEEGE, Judge. Circuit (Younie) Dwight Younie and Milen Mül- (Müller) sought injunctive ler relief and damages flooding in 1984 and 1987. equitable culminated in Trial of the issues permanently enjoining an order Davison Mitchell, County, City Donald Herrick, (collec- the civil defense director defendants) tiles, tively utilizing any “from drainage any ditches or canals of kind to drainage effect of unusual or unnatural quantities sloughs water from the ... upon property of the herein.” referring We affirm that of the order canals, reverse ditches and but part referring tile and to the circuit court remand with directions specified opin- enter an order in this as ion.
FACTS undisputed The facts are: 29, township The east one-half of section 103, range lying north of Interstate 90 of the forms western border Mitchell, County, South Dakota. large part A of the east one-half of section is a contains two areas identified as the northern and low parts There is a natural land barrier or “collar” between prevents the two low areas which water transferring until the reaches a water height. certain farms the Younie owns and southwest quarter of section which is divided into parts two Interstate 90.
Müller owns and farms the north half of immediately section which lies south of section 29. Johnson, Ek- “Rick” Johnson of Charles farm, Davis, Gregory, appellees, place At a on the Müller about lund & Milen mile south of Interstate Sylvia Dwight Müller and and Maxine one-half Kib- ditch which runs east and west and Younie. bee’s THERE A drains surface waters from the north to- IS PRESCRIPTIVE EASEMENT FOR THE ward the James DRAIN River. TILE. drainage- There is a well-defined natural provides
way starting
SDCL 46A-10A-67
that a
at about the center of section
*3
acquired
easement
be
if a
running generally
and
in a
29
drainage ditch has existed for at
least
direction across the Younie and Müller
twenty
years.*
consecutive
An easement
properties
emptying
and
into Kibbee’s
by prescription is created when the use of
ditch.
owner,
the land has been
to the
adverse
eight
An
inch drain tile was installed in
continuous,
uninterrupted
and
the
for
stat
early
leading
the
1900s
the
northern
Kougl
period.
Curry,
utory
427,
part
slough
of the
to the southwest
toward
see also Annota
drainageway
the natural
on
Younie
tion,
Drainage, 22 A.L.
Surface Waters -
property.
designed
The drain tile was
to
(1952).
R.2d 1047
drain excess surface water from the north-
part
slough
ern
of the
and across the Youn-
The drain tile from the northern
properties ultimately
ie and Müller
into
part
slough
place
of the
has
in
been
and
Kibbee’s ditch.
used as a means to drain surface waters
part
slough
from the northern
of the
for
apparently
pur-
The drain tile
served its
substantially
twenty years.
more than
pose
diverting
water from the northern
Drainage
except
has been continuous
as
slough
prop-
across the Younie and Müller
by plaintiffs’
limited
predeces
and their
erties and into Kibbee’s ditch until
attempts
destroy
sors’
to block or
the tile.
1960s,
predeces-
when Younie and Miiller’s
It follows that the use has been adverse to
attempted
sors in interest
to
block
tile.
(owners).
by
An easement
In
destroyed
Müller
the drain tile and
prescription has therefore been established.
longer
it no
to drain water from
functioned
part
slough.
of the
2. MULLER WRONGFULLY DE-
(which
part
slough
The southern
of the
STROYED THE DRAIN TILE.
immediately
90)
lies
north
Interstate
formerly
by
drained
a drain tile which was
equitable
There is an
maxim that
destroyed
by
in 1962
the construction of
equity
“he who comes into
must come with
highway.
interstate
clean hands.” Precision Instrument Man
ufacturing
Company
v. Automotive
again
In 1984 and
in 1987 there
awas
Machinery Company,
Maintenance
substantial accumulation of surface water
U.S.
65 S.Ct.
Younie and ordinarily interests joined their re- be unless their hands with the court with clean can, separable that the court with- enjoined us- are so quest defendants absence; injustice, repairing replacing proceed the drain tile. in their ing, out parties," inter- provide “indispensable not relief whose The court will a final cannot be on this issue. est is such that decree defendants them, affecting or that entered without THE PROP- DEPENDANTS WERE controversy in their ab- termination of ERLY ENJOINED FROM USING equity, would be inconsistent with sence DITCHES, BREAK- CANALS OR omitted). (citations ING THE COLLAR SURROUND- from which the flood water *4 NORTHERN PART OP ING THE corporate entirely within the emanates is THE SLOUGH. city limits of the of Mitchell. County’s actions of break building permits issued and controls the part ing the around the northern of collar structures, zoning respect to in- with the right- slough, ditching the the water cluding properties, a mobile two motel interstate, casting un of-way of and the park building and a center located home quantities and of water on usual unnatural the half of 29 where the within east section lands, clearly pro Younie and Miiller’s are slough city is a lies. We hold that by drainage law our hibited and decisions. proper necessary party and in interest and See, Elverson, e.g., v. 389 Winterton subject injunction in this case. to (S.D.1986); 633 v. N.W.2d Feistner Swen son, Thomp 5.FORM OF ORDER. 477, Andrews, N.W. v. 39 S.D. 165 9 son is enter an The circuit court directed to (1917). stating drainage running that the tile order injunctive This court has held that relief part of from the northern a may appropriate remedy an injury be tile, legal drainage for which there is an by flooding. unlawful v. suffered Gross shall by prescription. easement This order Co., Mutual Ins. 361 N.W.2d Conn. Life defendants, any provide that or of also (S.D.1985). The has also held 259 court them, tile, may replace the drain repair injunction granted an if that should with one the same size to effect drain- it of “protect party seeking it it will from age of waters surface from injury that in his dam- some would result drainageway into the natural across 452, Peterson, age.” Alsager v. 31 S.D. properties Younie Miiller’s and into and 456, 392 The actions N.W. Kibbee’s ditch. County clearly of Davison entitle Younie tile is drainage At the time that re- injunctive concerning Müller and to relief paired replaced, the circuit court should ditches, canals, the utilization of order, defendants, enjoining a enter further surrounding cutting and from the collar cutting “from the collar between low sloughs. express opinion no on wheth- We sloughs of northern and areas plaintiffs er Davison is liable to the utilizing any drainage ditches or damages. in the east half of 29 in order canals section any quantity 4. THE IS A PARTY to effect of water CITY PROPER casting and sloughs IN ACTION. such water THIS upon property herein.” Felker, v. Weitzel supersede portion This latter order (1956), this court judgment of the circuit court’s which is stated: by affirmed this decision. There to an parties are three classes of in equity: parties,” action who “Formal MORGAN, option complain- HENDERSON and be omitted at the
ant; MILLER, JJ., “necessary parties,” concur. who have SABERS, J., justified the harm part in and caused concurs wrongful Miiller’s conduct. part. in dissents WUEST, HEEGE, Judge, for Circuit
C.J., disqualified.
SABERS, (concurring in and Justice part). in
dissenting agree
I that: proper party in this city 1. The is a Dakota, STATE South Plaintiff action, Appellee, and prescriptive a easement for 2. There is tile, the drain VENTLING, Lawrence Defendant wrongfully destroyed the 3. Miiller Appellant. tile, drain county repair or 4. The is entitled to No. 16609.
replace the tile to the northern drain Supreme Court of South Dakota. *5 slough, Considered on Briefs Nov. 1989. but, agree I do not on the status of this record, injunction issue to Decided that an should Feb.
prevent county draining slough.
northern into the southern right injunction must estab- to an
“[T]he certainty.”
lished with reasonable Gross Co., 361 Mut. Ins. Connecticut Life (S.D.1985). If the coun-
ty’s necessary actions were wrong-
undo the harm caused Miiller’s tile,
fully breaking injunction drain no respect
should issue. The record in this
simply undeveloped inadequate, mak-
ing right injunction to an not reason-
ably permanent injunction certain. A party
should issue when a has shown injured deprived
that he would “be right lawful the aid of such without
some
injunction[.]” (quoting ex rel. Id. State Olsen, 57, 71, N.W.
Gray v. (1912)).
561, 562
Here, permanent injunction would
not even come into existence until after
county repaired replaced the drain tile to result, northern As a there is injunction. In urgent
no need for the addi-
tion, clearly Miiller has not established that prevent county right
he has a lawful draining into
Therefore, I remand would reverse and purpose trial court for the of deter-
mining county’s whether the actions were