Arthur STEINER, Thоmas L. Steiner, Donna Allen and James Pitzl Plaintiffs and Appellees, v. COUNTY OF MARSHALL, A Political Subdivision of the State of South Dakota, and the Board of County Commissioners of said County, MARION CUSICK, MAURICE ERICKSON, SHERMAN HALVERSON, LARRY JASPERS and LELA OLSON, Defendants and Appellees, and Marshall-Brown Crow Creek Landowners Assn., Inc., Intervenor and Appellant.
No. 19854.
Supreme Court of South Dakota.
Decided Aug. 27, 1997.
1997 SD 109 | 568 N.W.2d 627
CONCLUSION
[¶ 78.] Chamley was entitled to a fair trial. I would respectfully submit he got one.
[¶ 79.] The resolution of this case is as unfortunate as any case this writer has reviewed. We are not dealing with the abuse of money or land, but of the most vulnerable humans in our society, trusting children. Based оn the majority decision, W.W. and S.Y., young girls who were found by the veteran trial judge to be credible and truthful and who the jury determined to be victims of sexual abuse, are now found by the majority to have given “demonstrably false” testimony, a/k/a they lied. They will now be put through the horror of a second trial. The majority will authorize W.W. and S.Y. to be forced to be cross-examined concerning previously properly forbidden territory by the very person who was found by the jury to have perpetrated the vicious acts upon them, the pro-se Chamley. Chamley has already attempted to intimidate them by trying to contact the girls personally while this case was pending and later after he was incarcerated, by telephone.
[¶ 80.] Beyond that, this decision seeks to overturn, or at best ignore, settled case law and strike out on new courses previously rejected by this Court.
[¶ 81.] I would affirm the trial court in all respects.
[¶ 82.] STEELE, C.J., joins this special writing.
1997 SD 109
Arthur STEINER, Thomas L. Steiner, Donna Allen and James Pitzl Plaintiffs and Appellees, v. COUNTY OF MARSHALL, A Political Subdivision of the State of South Dakota, and the Board of County Commissioners of said County, MARION CUSICK, MAURICE ERICKSON, SHERMAN HALVERSON, LARRY JASPERS and LELA OLSON, Defendants and Appellees, and Marshall-Brown Crow Creek Landowners Assn., Inc., Intervenor and Appellant.
No. 19854.
Supreme Court of South Dakota.
Argued June 3, 1997.
Decided Aug. 27, 1997.
John Simko of Woods, Fuller, Shultz & Smith, Sioux Falls, for Defendants and Appellees.
Danny R. Smeins, Britton, for Intervenor and Appellant.
AMUNDSON, Justice.
[¶ 1.] Arthur Steiner, Thomas Steiner, Donna Allen, and James Pitzl (Landowners) sued Marshall County (County), seeking to enjoin County from obstructing the flow of water through County Highway 5 (Fort Road). Marshall-Brown Crow Creek Landowners Association, Inc. (Intervenor) filed a motion to intervene which was granted. Landowners and County eventually entered into a consent judgment which was approved by the trial court. The trial court dismissed the claims and defenses of Intervenor. Intervenor appeals and we affirm.
FACTS AND PROCEDURAL HISTORY
[¶ 2.] The land and water involved in this dispute are located in eastern Marshall County, and a portion of western Roberts
[¶ 3.] The road involved in this dispute, Fort Road, is a north-south county road which was built around 1934 across the west end of Cattail Lake. In other words, the upstream side of the lake is the east side of Fort Road, and the downstream side of the lake is the west side of Cattail Lake. The road was originally built with a grade of approximately nine feet above the floor of the lake bed, and it contained a seventy-two-inch drainage structure. In 1961, Fort Road was raised another eight feet. At the same time, a seventy-two-inch culvert was replaced with a thirty-six-inch culvеrt.
[¶ 4.] In the fall of 1995, water rose over twenty feet and reached the east side of Fort Road. In other words, Fort Road was acting as a dam. The thirty-six inch culvert located at the natural outlet to Cattail Lake failed to keep up with the rising tide, trapping more water on the east side of Fort Road. As a result, private property, including the property owned by Landowners, was flooded in July of 1995.
[¶ 5.] On May 9, 1996, Landowners filed a complaint against County, seeking an injunction to restrain County from obstructing the flow of water through Fort Road. They claimed around 3,000 acres of their farm land were flooded. On May 14, 1996, Intervеnor filed a motion to intervene as its downstream land located on the west side of Fort Road was threatened. Over County and Landowners’ objections, the trial court granted Intervenor‘s motion. Intervenor then filed an answer and cross claim.1
[¶ 6.] The first hearing was held on Landowners’ request for a preliminary injunction on May 16, 1996. On May 31, 1996, the trial court entered findings of fact and conclusions of law on the injunction issue. On August 22, 1996, a trial to the court was scheduled on Landowners’ amended complaint and Intervenor‘s cross claim. On this day, Landowners and County agreed to a consent judgment which was presented to the triаl court for approval. Over Intervenor‘s objections to the consent judgment, the trial court approved the judgment. In addition, the trial court dismissed the claims and defenses of Intervenor against Landowners and County on the ground that it failed to state a claim upon which relief could be granted. The trial court also awarded summary judgment to Landowners and County, stating any possible prescriptive easement rights had not yet ripened. Intervenor appeals, raising the following issues:
- Whether the consent judgment may be approved by the trial court without consent from Intervenor.
- Whether Intervenоr has prescriptive rights precluding additional drainage by Landowners.
- Whether the trial court erred in dismissing Intervenor‘s defenses and claims as a matter of law.
DECISION
[¶ 7.] I. Consent Judgment
[¶ 8.] Intervenor contends the trial court erred in approving the consent judgment entered into between Landowners and County, because it was not agreed to by Intervenor. Such a determination is reviewed applying an abuse of discretion standard. See Kirkland v. New York St. Dep‘t of Correctional Servs., 711 F.2d 1117, 1128 (2nd Cir. 1983), cert. denied, 465 U.S. 1005, 104 S.Ct. 997, 79 L.Ed.2d 230 (1984).
[¶ 10.] In Local Number 93 v. City of Cleveland, 478 U.S. 501, 528-30, 106 S.Ct. 3063, 3078-79, 92 L.Ed.2d 405, 427-28 (1986), the United States Supreme Court was confronted with a consent judgment to which an intervenor objected. The consent judgment was submitted to the district court for approval by the firefighters (the plaintiffs) and the city of Cleveland (the defendant). The intervenor, a labor union, contested the approval of the consent judgment. Id. at 512, 106 S.Ct. at 3070, 92 L.Ed.2d at 417. After hearing objections from all parties, the district court approved the judgment.
[¶ 11.] On appeal, the intervenor argued “its consent was required before the court could approve a consent decree[,]” because the intervenor “was permitted to intervene as of right.” Id. at 528, 106 S.Ct. at 3078-79, 92 L.Ed.2d at 427. The Court responded by stating:
A consent decree is primarily a means by which parties settle their disputes without having to bear the financial and other costs of litigating. It has never been supposed that one party—whether an original party, a party that was joined later, or an intervenor—could preclude other parties from settling their own disputes and thereby withdrawing from litigation. Thus, while an intervenor is entitled to present evidence and have its objection heard at the hearings on whether to approve a consent decree, it does not have power to block the decree merely by withholding its consent.
Id. at 528-29, 106 S.Ct. at 3079, 92 L.Ed.2d at 427-28 (emphasis added) (citing Zipes v. Trans World Airlines, Inc., 455 U.S. 385, 392, 400, 102 S.Ct. 1127, 1131, 1136, 71 L.Ed.2d 234 (1982); Kirkland, 711 F.2d at 1126).2
[¶ 12.] Similar to Local Number 93, the Intervenor in this case participated in the consent judgment hearing and was permitted to submit its objections to the decree.3 After considering these objections, the trial court approved the consent judgment.
[¶ 13.] Local Number 93 provides a consent judgment cannot “impose duties or obligations on a third party, without that party‘s agreement.” Id. at 529, 106 S.Ct. at 3079, 92 L.Ed.2d at 428. In other words, the consent judgment must not prevent Intervenor from litigating any possible legitimate claims. The language of the agreement in this case is clearly consistent with this notion, as it provides that no obligations to any parties other than Landowners and County are created by the judgment. In addition to no obligations, Intervenor is not bound to anything under the agreement. In fact, all of Intervenor‘s claims differ from the issues addressed in the consent judgment. Intervenor‘s claim that it possesses a prescriptive easement is not even mentioned in the consent judgment.
[¶ 14.] Based on these facts, the trial court did not abuse its discretion in approving the
[¶ 15.] II. Prescriptive Easement
[¶ 16.] The trial court granted a judgment on the pleadings in favor of County and Landowners as well as a summary judgment dismissing Intervenor‘s cross claim. Our standard of review of this decision is as follows:
A motion to dismiss under
SDCL 15-6-12(b) tests the legal sufficiency of the pleading, not the facts which support it. Estate of Billings v. Deadwood Congregation, 506 N.W.2d 138, 140 (1993) (citing Hunt v. Hunt, 309 N.W.2d 818, 820 (S.D. 1981)). For purposes of the pleading, the court must treat as true all facts properly pled in the complaint and resolve all doubts in favor of the pleader. Johnson v. Kreiser‘s, Inc., 433 N.W.2d 225, 226 (S.D. 1988); Janklow v. Viking Press, 378 N.W.2d 875, 877 (S.D. 1985). “Our standard of review of a trial court‘s grant or denial of a motion to dismiss is the same as our review of a motion for summary judgment—is the pleader entitled to judgment as a matter of law?” Billings, 506 N.W.2d at 140 (citing Jensen Ranch, Inc. v. Marsden, 440 N.W.2d 762, 764 (S.D. 1989)). Stumes v. Bloomberg, 1996 SD 93, ¶ 6, 551 N.W.2d 590, 592. Therefore, we are to determine whether Landowners and County are entitled to a judgment as a matter of law.
[¶ 17.] Intervenor argues the trial court erred in granting a judgment on the pleadings, because the natural easement rights of Landowners in the flow of water crossing Fort Road have been restricted by prescriptive easement rights in favor of Intervenor. Having such prescriptive easement rights, Intervenor argues, prohibits County from installing more culverts which threaten Intervenor‘s land.
[¶ 18.] Prescriptive easements were discussed by this Court in Wolff v. South Dak. Game, Fish & Parks Dep‘t, 1996 SD 23, ¶ 28, 544 N.W.2d 531, 536 n.5:
Similar to adverse possession, “[t]o claim the benefit of an easement by prescription, a person must show open, continued, and unmolested use of the land in the possession of another for the statutory period. The statutory period for prescriptive easements, like that for adverse possession, is twenty years.” Travis v. Madden, 493 N.W.2d 717, 720 (S.D. 1992) (citations omitted).
[¶ 19.] Addressing Intervenor‘s contention that it possesses certain prescriptive rights, the trial court stated:
Really what the intervenor is claiming here is a prescriptive flood right. They are saying we think that we have a right to flood the plaintiffs’ property because that culvert, that 36-inch culvert has been in that road for more than 20 years. And that essentially the Court believes constitutes the argument of the intervenor. The Court is of the view that as a matter of law a prescriptive easement will not begin to accrue until there is damage. There would be flooding damage or damage sustained by someone first before that prescriptive flood easement could be imposed against these plaintiffs and their property.
Support for this finding by the trial court is found in Heezen v. Aurora County, wherein farmers sought to enjoin County from diverting water into Crystal Lake, causing their land to flood. 83 S.D. 198, 200, 157 N.W.2d 26, 29 (1968). The farmers also sought damages as a result of the flooding, claiming the County did not possess a prescriptive right to flood their land. As to the issue of prescriptive rights, this Court stated: “The cause of action accrues and the statute begins to run when the landowner sustains the damage from the overflow.” Id. at 206, 157 N.W.2d at 31. We also cited 54 CJS Limitations of Actions § 172 (now § 181), which states: “Where obstructions erected by defendant, or other acts or omissions by him, not of themselves unlawful as to plaintiff, cause water to overflow plaintiff‘s land, a cause of аction accrues and the statute begins to run when plaintiff sustains damage from the overflow, not when the obstructions are erected or the other acts or omissions occur[.]” See also City of Mobile v. Jackson, 474 So.2d 644, 649 (Ala. 1985) (stating, “[T]he construction itself did not create a cause of action and thus, whatever legal injury result-
[¶ 20.] As stated previously, the required time for a prescriptive easement is twenty years in South Dakota. Wolff, 1996 SD 23, at 128, 544 N.W.2d at 536 n.5. Since the farms in Heezen were not flooded until six years before the prescriptive easement was allegedly acquired, there was no easement. 83 S.D. at 206, 157 N.W.2d at 31. Likewise, it is undisputed there has been no flooding of Intervenor‘s land for twenty years prior to the date this cause of action was brought. Rather, the flooding, if any, occurred within the past year or possibly two years. Therefore, the controlling case of Heezen provides that Intervenor‘s cause of action сoncerning a prescriptive easement is barred.
[¶ 21.] Intervenor cites Nagel v. Emmons County N.D. Water Resource Dist., 474 N.W.2d 46 (N.D. 1991), to support its argument that the prescriptive period begins when the road construction is completed. In Nagel, the drainage pattern was altered in 1965 by certain road construction, allegedly causing damage to plaintiff‘s property. In 1989, the plaintiff sued to enjoin the defendants from flooding the land and for monetary damages. The court held the prescriptive period begins when the burden is placed on the land. Id. at 50. The burden was placed on the land when the construction project was completed, in 1965. Nagel does not support Intervenor‘s argument, however, as the plaintiff admitted he knew the construction project would cause damage to his property upon the completion of the project in 1965. Id. at 47. The plaintiff simply waited twenty-four years before he brought suit in 1989. In the case at hand, the construction changes which were completed in 1961 caused no burden to, or intrusion upon, any party‘s property until 1995. As we stated in Kougl v. Curry, “a use which is permissive is not adverse and will not ripen into a prescriptive right[.]” 73 S.D. 427, 432, 44 N.W.2d 114, 116 (S.D. 1950).
[¶ 22.] In addition, Intervenor has yet to suffer any flooding damage, as it failed to assert monetary damages in its cross claim. In faсt, Intervenor‘s cross claim states that “land owned or operated by Intervener [sic] will be flooded[.]” (Emphasis added.) “Generally, there is no actionable injury [for increases in volume or rate of water flow] unless flooding or erosion occurs.” 1 Waters and Water Rights § 9.02(c)(2), at 431 (1991). In In re Buttolph, for example, the appellants claimed the decision to authorize construction of a dam was erroneous, but no monetary damages were sought. 147 Vt. 641, 527 A.2d 1147 (1987). Having no injury to their property, appellants were barred from claiming a common-law rights violation. Id. 527 A.2d at 1149.
[¶ 23.] There is yet another flaw in Intervenor‘s argument. Its cross claim asserts possession of a prescriptive easement as to Fort Road. However, Fort Road is County property, and one cannot obtain a prescriptive easement against the government. Classen v. State, Dep‘t of Highways, 621 P.2d 15, 17 (Alaska 1980) (“[A]n easement may not be acquired by prescription against the state.“); Randall v. Board of Comm‘rs, 77 Ind. App. 320, 131 N.E. 776, 779 (1921) (“No prescriptive right can be obtained against the government.“); Matthews v. State, 113 N.M. 291, 825 P.2d 224, 230 (Ct.App. 1991) (“Absent a statute permitting the creation of an easement over lands owned by the state, an easement cannot be acquired against the state, its subdivisions or persons holding thereunder, no matter how long continued.“); City of Benton City v. Adrian, 50 Wash.App. 330, 748 P.2d 679, 683 (1988) (“[A]n easement by prescription[] cannot be acquired to property held by a municipal corporation for public purposes in its governmental capacity.“). Further, there is no allegation by Intervenor that trespass was committed by County by the building of the culverts.4
[¶ 24.] For the foregoing reasons, we agree with the trial court that Landowners and County are entitled to a judgment as a matter of law.
[¶ 25.] III. Dismissing Certain Claims as a Matter of Law.
[¶ 26.] Intervenor also maintains the trial court erred in dismissing its claims and defenses (other than the claims pertaining to prescriptive easements) as a matter of law. Specifically, Intervenor asserts they are entitled tо a trial on whether injunctive relief should be granted. However, Intervenor5 fails to recognize its basis for an injunction is the claim regarding a prescriptive easement, discussed above. A review of the pleadings reveals no other basis on which an injunction was to be granted.6 Having held Intervenor acquired no such prescriptive rights, there is no need to address the injunction issue.
[¶ 27.] Intervenor also argues the trial court erred in failing to discuss the application of the reasonable flow doctrine.7 However, there was no specific mention of this doctrine in the pleadings on which the motiоn to dismiss was granted by the trial court. As we have stated numerous times, “[I]ssues not addressed or ruled upon by the trial court will not be addressed by this Court for the first time on appeal.” Watertown v. Dakota, Minn. & Eastern R.R., 1996 SD 82, ¶ 26, 551 N.W.2d 571, 577. Therefore, we will not now address the issue on appeal.
[¶ 30.] KONENKAMP and GILBERTSON, JJ., concur.
[¶ 31.] SABERS, J., concurs in part and concurs in result in part.
[¶ 32.] MILLER, C.J., concurs in result.
SABERS, Justice (concurring in part and concurring in result in part).
[¶ 33.] I agree: (1) that the consent judgment may be approved without the consent of Intervenors; and (2) that Intervenors did not establish a prescriptive easement. I write specially to state that (3) Intervenors should have been provided an opportunity to present their case with respect to the unreasonableness of the flow of downstream waters.
MILLER, Chief Justice (concurring in result).
[¶ 34.] I agree that Intervenor had not yet obtained any prescriptive rights against Landowners. However, for reasons stated below I concur in result.
[¶ 35.] I. Consent Judgment
[¶ 36.] The majority opinion states that Intervenor‘s consеnt was not needed before the trial court could approve the consent judgment entered into between Landowners and County. As authority to support this proposition, it cites to the United States Supreme Court case of Local Number 93 v. City of Cleveland, 478 U.S. 501, 528-30, 106 S.Ct. 3063, 3078-79, 92 L.Ed.2d 405, 427-28 (1986). This Court is not bound, nor should it be bound, by this United States Supreme Court opinion. See People v. Gillespie, 136 Ill.2d 496, 145 Ill.Dec. 915, 557 N.E.2d 894, 897 (1990) (stating that “State courts are not required to follow United States Supreme Court precedent unless the result therein is mandated by the Constitution of the United States.“) (citing Harris v. Rivera, 454 U.S. 339, 344-45, 102 S.Ct. 460, 463-64, 70 L.Ed.2d 530, 535 (1981)).
[¶ 37.] Intervenor entered into this action as a matter of right.
Upon timely application anyone shall be permitted to intervеne in an action:
. . .
(2) When the applicant claims an interest relating to the property or transaction which is the subject of the action and he is so situated that the disposition of the action may as a practical matter impair or impede his ability to protect that interest, unless the applicant‘s interest is adequately represented by existing parties.
Intervenor was permitted to intervene in this case precisely because its interests were not adequately protected by the original parties. The trial court recognized that Intervenor should have been made an original party, and was not originally joined as a party only because Landowners intentionally chose to
[¶ 38.] By intervening as a matter of right under
[¶ 39.] Likewise, this Court has held that when an intervenor was a party to a case, thаt case could not be dismissed after the original parties settled their dispute even though such a dismissal would not have been an adjudication of any of the issues raised by the intervenor. Schoniger v. Logan, 40 S.D. 30, 35, 166 N.W. 226, 228 (1918). These cases reflect the strong policy of this Court not to allow the original parties in an action to effectively eliminate an intervenor‘s claims when that intervenor has been made a party to the action as a matter of right.
[¶ 40.] Clearly, once an intervenor is made a party, the original parties should not have the opportunity to exclude the intervenor once again by entering a сonsent judgment without the intervenor. It has been noted that “‘the purpose of intervention is to settle in one action and by a single judgment the whole controversy among the persons involved[.]‘” Pine Lawn Bank & Trust Co. v. City of Pine Lawn, 365 Mo. 666, 285 S.W.2d 679, 684 (1956) (citation omitted). This Court has also observed that “[t]he purpose of intervention is to obviate delay and multiplicity of suits by creating an opportunity to persons directly interested in the subject matter to join in an action or proceeding already instituted.” Jackson v. Board of County Comm‘rs, 76 S.D. 495, 502, 81 N.W.2d 686, 690 (1957). It stands to reason that to fulfill the purpose of intervention and more importantly to protect the rights of all the parties to an action, intervеnors should be parties to a consent judgment.
[¶ 41.] I assert that it was an error for the trial court to approve the consent judgment without the consent of Intervenor.
[¶ 42.] II. Prescriptive Easement
[¶ 43.] I only concur in result because I disagree with the majority‘s analysis of when the prescriptive period begins to run.
[¶ 44.] The opinion cites Heezen v. Aurora County, 83 S.D. 198, 200, 157 N.W.2d 26, 31 (1968), for the proposition that the statute does not begin to run until the landowner‘s land is damaged by the overflow water. It also relies on 54 CJS Limitations of Actions § 181, which states in relevant part: “Where obstructions erected by defendant, or other acts or omissions by him, not of themselves unlawful as to plaintiff, cause water to overflоw plaintiff‘s land, a cause of action accrues and the statute begins to run when plaintiff sustains damage from the overflow, not when the obstructions are erected or the other acts or omissions occur[.]” (Emphasis added.) In the present case, Intervenor had erected no structure nor done anything to cause water to overflow Landowners’ land. The majority improperly focuses on the nature of the claimed prescriptive easement as an easement to flood Landowners’ land. However, Intervenor is not claiming a right to flood, but rather is claiming a right to be free from drainage from Landowners’ land.
[¶ 45.] The cases that the majority opinion cites in favor of its position involve a situation in which a defendant performed some affirmative act to flood the plaintiff‘s land. In Heezen, Aurora County was claiming a prescriptive right to flood Heezen‘s land. 83 S.D. at 200, 157 N.W.2d at 28. Heezen claimed that the manner in which the county “graded, maintained and improved” a road diverted water from one watershed to Crystal Lake which then overflowed and flooded Heezen‘s land. Id. The majority also cites Schmutte v. State, 147 Neb. 193, 22 N.W.2d
[¶ 46.] This Court recognizes the principle that “the right to be free from the flow of surface waters may be acquired by the servient tenement by prescription.” Kougl v. Curry, 73 S.D. 427, 431, 44 N.W.2d 114, 116 (1950). The Court in Kougl also noted that the law of prescription can extinguish the natural servitude that allows an upper property owner to discharge surface water over the lands of a lower property owner. Id. This is the nature of the right that Intervenor in the present case is claiming and thus the majority should recognize that such a separate right exists.
[¶ 47.] I therefore disagreе and disassociate myself from the majority‘s characterization of this issue as a right to flood Landowners’ land. The issue here is: When did the prescriptive period begin to run for Intervenor‘s right to be free from drainage off of Landowners’ land? I concur in the ultimate result reached in the majority holding that there is no indication that the twenty-year prescriptive period has yet run. For Intervenor to have extinguished through prescription Landowners’ rights to drain water onto Intervenor‘s land, Intervenor‘s use of the road must have been “adverse” to Landowners’ right. Kougl, 73 S.D. at 431-32, 44 N.W.2d at 116. The first adverse use by Intervenor did not occur until the wаter backed up onto Landowners’ land within the last year or possibly two years. There is no other evidence of a time in which Intervenor relied on the road and the original culvert to be free from drainage from Landowners’ land.
[¶ 48.] III. Dismissing Certain Claims as a Matter of Law
[¶ 49.] I agree with and join Justice SABERS’ concurrence in result.
RICHARD W. AMUNDSON
JUSTICE