#26920-a-LSW

2014 S.D. 69

                             IN THE SUPREME COURT
                                     OF THE
                            STATE OF SOUTH DAKOTA

                                    ****
SHERRI STRONG,                               Plaintiff and Appellee,

      v.

ATLAS HYDRAULICS, INC.
and CHAD HASERT,                             Defendants and Appellants.


                                    ****

                  APPEAL FROM THE CIRCUIT COURT OF
                     THE SECOND JUDICIAL CIRCUIT
                  MINNEHAHA COUNTY, SOUTH DAKOTA

                                    ****

                    THE HONORABLE SUSAN M. SABERS
                               Judge

                                    ****

JEFFREY R. BECK of
Beck Law, Prof., LLC
Sioux Falls, South Dakota                    Attorneys for plaintiff
                                             and appellee.



DANIEL B. SHUCK
Sioux City, Iowa                             Attorney for defendants
                                             and appellants.

                                    ****

                                             CONSIDERED ON BRIEFS
                                             ON AUGUST 25, 2014

                                             OPINION FILED 10/01/14
#26920

WILBUR, Justice

[¶1.]         In this intermediate appeal, we review the circuit court’s order

granting a preliminary and a permanent injunction prohibiting and permanently

enjoining a business from allowing surface water to uncontrollably discharge from

its property onto a landowner’s property in a manner that threatens the property

and residential structure. We affirm.

                    FACTS AND PROCEDURAL BACKGROUND

[¶2.]         Sherri Strong owns a single-family residence located on Lewis Drive in

Brandon, South Dakota. Strong built the house in 1990. Atlas Hydraulics, Inc.

(Atlas) 1 owns and operates a manufacturing plant located on Sioux Boulevard in

Brandon. The Sioux Boulevard location has been Atlas’s primary location for

operations since 1986, though testimony at trial indicated that Atlas had recently

constructed a facility at a new location on Redwood Boulevard in Brandon and

moved its primary operations there. Atlas uses the Sioux Boulevard location for

storage, and at the time of the court trial for injunctive relief, the location was listed

for sale. Chad Hasert is the general manager and authorized representative of

Atlas. The west boundary of Strong’s property abuts the land on Sioux Boulevard

owned by Atlas. Specifically, Atlas’s 467-foot east boundary shares 74 feet with

Strong while most of Atlas’s remaining east frontage abuts five other single-family

residential lots.




1.      Atlas was previously known as Pace Manufacturing (Pace). In approximately
        2008, Starcan acquired Pace and changed its name to Atlas Hydraulics, Inc.

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[¶3.]         In 1998, Atlas constructed an addition to its plant on the east side of

its existing building, which abutted the residential development, including Strong’s

west property boundary. Strong alleged that after the completion of the plant

addition, she began having water problems at her house. Strong testified that she

experiences six to twelve flooding events annually that cause water to flow into her

garage and into her basement through the windows. In addition, she testified that

in order to reduce the amount of water flowing into her basement through the

windows, Strong opens the rear and overhead doors to her garage to let the water

flow through the garage. Due to the water damage to her residence, Strong

replaced appliances and had the new appliances placed on blocks to keep water off

of the bottom of those appliances.

[¶4.]         The amount of water flowing onto Strong’s property is more directly

proportional to the speed at which the precipitation falls and the speed at which

snowmelt occurs, than to the overall amount of precipitation received. The circuit

court found that evidence presented at the injunction court trial showed that nearly

all of the water from Atlas’s property, caused by either rainfall or snowmelt, flowed

onto Strong’s property during each event.

[¶5.]         In 2008, Strong, along with other property owners abutting the Atlas

property, contacted Atlas concerning the water discharge. 2 Atlas met with property

owners, including Strong, and representatives from the City of Brandon, and



2.      The circuit court found, “Although other property owners also initiated
        contact with [Atlas], [Strong] is, was, and remains the property owner to bear
        the brunt of the water discharge from the [Atlas] property and appears to be
        the only property owner to have commenced litigation on this issue.”

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assured them that Atlas would assist in remedying the water issue and that Atlas

wanted to be a “good neighbor.” Atlas also met with representatives from the City.

The representatives from the City gave Atlas a two-week timeline in which to find a

remedy for the water problem. Atlas did not take any effective action in 2008 or

early 2009 to stop the flow of water.

[¶6.]        In 2009, the city engineer conducted a survey of the Atlas property and

the surrounding, affected neighbors’ properties to provide alternatives to Atlas to

remedy the water drainage problem. The city engineer presented two alternatives

to Atlas. Both alternatives suggested the use of curbs and a berm to direct the

water flow and a detention pond for water collection. The city engineer, in an

October 2009 letter, requested that Atlas provide a “final design for the

improvements that has been prepared by a registered professional engineer.” The

letter directed Atlas to provide the City with a final design proposed by Atlas’s own

engineer to solve the water drainage issue.

[¶7.]        After being directed to do so by the City, Atlas did not hire or consult

with an engineer. Additionally, Hasert disagreed with the remedies proposed by

the city engineer and did not follow through with the recommendations made by the

city engineer. As of the date of the trial, Atlas had not rectified the underlying

water drainage issue and water continued to flow from the Atlas property onto

Strong’s property.

[¶8.]        On August 6, 2012, Strong sued Atlas for nuisance, negligence, and

negligence per se and demanded a jury trial. Strong also filed a motion for

preliminary and permanent injunctions. On October 11, 2013, Strong gave notice to


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Atlas of a hearing for the preliminary and permanent injunctions to Atlas. A court

trial was held on November 26, 2013. Following trial, the circuit court gave an oral

ruling granting both the preliminary and permanent injunctions. The injunctions

prohibited Atlas from allowing surface water to uncontrollably discharge onto

Strong’s property in a manner that would threaten Strong’s property and

residential structure. The circuit court entered findings of fact, conclusions of law,

and an order to this effect on December 19, 2013.

[¶9.]        On February 12, 2014, this Court entered its order granting Atlas’s

petition to appeal from the circuit court’s intermediate order. Atlas presents five

issues for our review:

             1.     Whether the circuit court misapplied the relevant
                    statutes and case law in granting an injunction regarding
                    ground water nuisance.

             2.     Whether the circuit court erred in relying on Strong’s
                    testimony, which was impeached by Atlas.

             3.     Whether Strong’s delay in seeking injunctive relief
                    mitigates against any finding of irreparable harm.

             4.     Whether there is sufficient evidence to show irreparable
                    harm to warrant an injunction.

             5.     Whether the circuit court erred in assessing the public
                    interest.

                             STANDARD OF REVIEW

[¶10.]       A circuit court’s decision to grant or deny an injunction is within its

sound discretion. Halls v. White, 2006 S.D. 47, ¶ 4, 715 N.W.2d 577, 579.

             We will not disturb a ruling on injunctive relief unless we find
             an abuse of discretion. An abuse of discretion can simply be an
             error of law or it might denote a discretion exercised to an
             unjustified purpose, against reason and evidence. In doing so,

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             we review the [circuit] court’s findings of fact under a clearly
             erroneous standard, but we give no deference to the [circuit]
             court’s conclusions of law.

Id. (citations omitted) (internal quotation marks omitted).

                                     DECISION

[¶11.]       Permanent injunctions are authorized by SDCL 21-8-14:

             Except where otherwise provided by this chapter, a permanent
             injunction may be granted to prevent the breach of an obligation
             existing in favor of the applicant:
                    (1) Where pecuniary compensation would not afford
                    adequate relief;
                    (2) Where it would be extremely difficult to ascertain the
                    amount of compensation which would afford adequate
                    relief;
                    (3) Where the restraint is necessary to prevent a
                    multiplicity of judicial proceedings; or
                    (4) Where the obligation arises from a trust.

“Several guiding factors assist courts in deciding whether to grant or deny

injunctive relief.” New Leaf, LLC v. FD Dev. of Black Hawk LLC, 2010 S.D. 100, ¶

15, 793 N.W.2d 32, 35. Those factors include:

             (1) Did the party to be enjoined cause the damage? (2) Would
             irreparable harm result without the injunction because of lack of
             an adequate and complete remedy at law? (3) Is the party to be
             enjoined acting in bad faith or is the injury-causing behavior an
             innocent mistake? (4) In balancing the equities, is the hardship
             to be suffered by the enjoined party . . . disproportionate to the .
             . . benefit to be gained by the injured party?

Id. (quoting Knodel v. Kassel Twp., 1998 S.D. 73, ¶ 9, 581 N.W.2d 504, 507).

Whether a preliminary injunction should be granted involves consideration of “(1)

the threat of irreparable harm to the movant; (2) the state of the balance between

this harm and the injury that granting the injunction will inflict on other parties

litigant; (3) the probability that movant will succeed on the merits; and (4) the
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public interest.” Dacy v. Gors, 471 N.W.2d 576, 579 (S.D. 1991) (quoting Dataphase

Sys., Inc. v. C L Sys., Inc., 640 F.2d 109, 113 (8th Cir. 1981)).

[¶12.]         Further, “[a] suit for injunction is inherently an equitable action.”

Knodel, 1998 S.D. 73, ¶ 8, 581 N.W.2d at 507. “A party seeking equity in the court

must do equity, including entering the court with clean hands.” Id. (quoting Talley

v. Talley, 1997 S.D. 88, ¶ 29, 566 N.W.2d 846, 852). “An essential element to

equitable relief is the lack of an adequate remedy at law.” Id. Thus, to obtain a

preliminary injunction, the movant must show a likelihood of success on the merits.

Dacy, 471 N.W.2d at 579. And to be successful in a request for a permanent

injunction, the movant must demonstrate success on the merits. Bank One, Utah v.

Guttau, 190 F.3d 844, 847 (8th Cir. 1999) (citing Amoco Prod. Co. v. Village of

Gambell, Alaska, 480 U.S. 531, 546 n.12, 107 S. Ct. 1396, 1404 n.12, 94 L. Ed. 2d

542 (1987)).

[¶13.]         1.    Whether the circuit court misapplied the relevant
                     statutes and case law in granting an injunction regarding
                     ground water nuisance.

[¶14.]         Atlas asserts that the causes of action alleged in Strong’s complaint

will be appropriately addressed by a jury, and therefore, the circuit court lacked a

statutory basis to issue an injunction. Specifically, Atlas asserts that the circuit

court’s grant of the permanent injunction was in violation of SDCL 21-8-14. Atlas

argues that Strong presented evidence that pecuniary compensation would afford

adequate relief under SDCL 21-8-14(1). Atlas also contends that the other three

subsections contained in SDCL 21-8-14 are not applicable. Atlas further argues

that the circuit court attempted to improperly transition a surface water drainage


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issue into a nuisance issue. We now examine each guiding factor to determine

whether the circuit court abused its discretion in granting injunctive relief.

Damage

[¶15.]       In support of its position, Atlas presented the testimony of its expert

that there was a significant amount of water drainage occurring in the direction of

the Strong property prior to any development on the Atlas property. The circuit

court, however, concluded that Atlas’s expert’s conclusions on the water drainage

facts “lacked sufficient foundation to be reliable or complete” and that his testimony

was of “limited usefulness to the [circuit court’s] decision.” See Sauer v. Tiffany

Laundry & Dry Cleaners, 2001 S.D. 24, ¶ 14, 622 N.W.2d 741, 745 (providing that

“[f]act finders are free to reasonably accept or reject all, part, or none of an expert’s

opinion”). Indeed, the record demonstrates that Atlas’s expert’s review of the

historical data did not include any review of data predating Atlas’s construction of

the addition to its plant. The circuit court noted, and the record supports, that

Atlas’s expert examined the property at issue only one week before the court trial

while Strong has lived on the property for more than 20 years. Atlas’s expert

conducted no speed or other calculations to determine the extent or effect of the

water flow from Atlas’s property to Strong’s property. The record supports the

circuit court’s characterization of the expert’s testimony that the construction of

Atlas’s addition “dramatically increased the slope of the land nearest the residential

boundary line shared with [Strong].” In addition, the record demonstrates that

Atlas’s expert did not perform any soil testing or hydrology calculations and did not

consider the lay of the land.


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[¶16.]          Based on Strong’s testimony, the circuit court found that the water

drainage problem began after Atlas constructed the addition to its plant. Strong

testified that nearly all of the water draining from Atlas’s property flowed onto her

property. Strong supported her testimony with record evidence, such as pictures of

the water drainage issues and precipitation data. The circuit court also found

Strong to be an “extremely credible witness” and that she simply “misspoke and

used the wrong date” during her deposition. 3 “On review, this Court defers to the



3.       Strong testified at the court trial:
                Q. When approximately was that addition put on that building?
                A. I believe it was the [mid-90s].
                Q. [Mid-90s]. From the time that you moved in - - let me ask
                this: Have you had any issues with the plant?
                A. Well, since they added onto the building I’ve had a lot of
                flooding issues in my yard and through my garage and into my
                basement.
                Q. Was the flooding happening when it was the old size
                building?
                A. No, it did not.
         On cross-examination, Atlas’s counsel asked:
                Q. Now, when I took your deposition you told me that the first
                time you noticed water pooling in your backyard or in your
                basement was 1995; do you remember that testimony?
                A. Yes.
         When questioned by her counsel, Strong testified:
                Q. [Strong], you answered a question [Atlas’s counsel] asked
                you about when you said in the depo you said you first thought
                the water came in 1995?
                A. Yes, I was - -
                ....
                Q. Was - - did you know the exact date that they added onto the
                plant?
                                                         (continued . . .)
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#26920

circuit court, as fact finder, to determine the credibility of witnesses and the weight

to be given to their testimony.” Peterson v. Issenhuth, 2014 S.D. 1, ¶ 15, 842 N.W.2d

351, 355 (quoting Hubbard v. City of Pierre, 2010 S.D. 55, ¶ 26, 784 N.W.2d 499,

511). Thus, the record supports the findings and conclusions of the circuit court

that Atlas’s actions caused the damage to Strong’s property.

Irreparable Harm

[¶17.]       “Harm is . . . irreparable ‘where . . . it cannot be readily, adequately,

and completely compensated with money.’” Knodel, 1998 S.D. 73, ¶ 13, 581 N.W.2d

at 509 (quoting Maryhouse, Inc. v. Hamilton, 473 N.W.2d 472, 475 (S.D. 1991)). We

agree with the circuit court that, in this case, an award of monetary damages would

not fix the underlying water drainage issue. It is important to note, however, that

once the continuing problem ends, the harm to Strong could be adequately

compensated with monetary damages. Without the issuance of an injunction,

Strong’s property will continue to suffer damage from fast rainfall or quick

snowmelt, inevitably causing Strong irreparable harm into the future.




________________________________________
(. . . continued)
               A. I do not know that.
             Q. Did you qualify the first water came in 1995 answer with the
             fact that it wasn’t until after the plant was built? After the
             addition came. You said I’m not sure when it was, but it was
             after.
             A. Yes, yes.

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Furthermore, Strong testified that an award of money damages would not cure the

problem at issue here. 4

Bad Faith or Innocent Mistake

[¶18.]         The circuit court found that Atlas acted in bad faith by assuring Strong

and the City that it was acting as a “good neighbor” and was pursuing a solution to

the water drainage issue when the facts of the case show that Atlas was not in fact

pursuing such a solution. We agree. Atlas had notice in 2008 of the water drainage

issue. The record demonstrates that the City provided Atlas alternatives and gave

it a timeline for compliance with one of the alternatives. However, as of the date of

the court trial, Atlas had not remedied the water drainage issue. Neither of the

City’s alternative remedies would have interfered with Atlas’s daily operations or

business. In contrast, the circuit court concluded that Strong had not acted in bad

faith by actively working with Atlas and the City to find a solution to the problem.

She documented the problem and resulting harm to her property through

photographs and precipitation data.




4.       The circuit court noted that
               During cross-examination of [Strong], [Atlas’s] counsel asked
               [Strong] why she had not accepted a prior monetary settlement
               offer from [Atlas]. [Strong’s] counsel did not object to the
               question. [Strong] responded that money alone could not fix the
               problem. The [c]ourt acknowledges that evidence of settlement
               offers is not admissible on the issue of liability, and did not
               consider the testimony for that purpose. However, given the
               lack of objection, and [Atlas’s] counsel’s act of opening the door
               to that issue, the [c]ourt did consider the evidence relevant to its
               finding of irreparable harm.

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Balancing Hardship and Benefit

[¶19.]       We agree with the circuit court that the balancing of the equities

supports the issuance of an injunction in favor of Strong. Without an injunction,

Strong’s property would continue to experience water damage. The circuit court

determined that the injunction would force Atlas to remedy the issue on its

property—property over which Strong had no control. Further, the injunction

would not affect Atlas’s ability to conduct its business. See Prairie Hills Water &

Dev. Co. v. Gross, 2002 S.D. 133, ¶ 39, 653 N.W.2d 745, 754 (acknowledging that “it

is within the province of the trial court to enjoin all business activities which cause

a nuisance, even where the result may be termination of the present use of the

property”) (emphasis omitted). But, an injunction would favorably affect Strong’s

use and enjoyment of her property.

Public Interest

[¶20.]       In addition, the circuit court considered the public interest—a

component of the preliminary injunction analysis—in analyzing whether injunctive

relief should be granted. See Dacy, 471 N.W.2d at 579. The circuit court concluded

that the public interest is best served when litigation has an end point, and if the

requested injunction were not granted, Strong would have no relief from the water

drainage problem and would be forced to bring suit every time it rains quickly or

the snow melts rapidly. “A trip to the courthouse to settle a legal dispute should be

dispositive and not an annual event.” Hendrickson v. Wagners, Inc., 1999 S.D. 74, ¶

24, 598 N.W.2d 507, 512. We agree.




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Success on the Merits

[¶21.]       Lastly, in granting injunctive relief, we agree with the circuit court

that Strong demonstrated actual success on the merits. See Bank One, Utah, 190

F.3d at 847. The South Dakota Code defines a nuisance as follows:

             A nuisance consists in unlawfully doing an act, or omitting to
             perform a duty, which act or omission either:
                   (1) Annoys, injures, or endangers the comfort, repose,
                   health, or safety of others;
                   (2) Offends decency;
                   (3) Unlawfully interferes with, obstructs, or tends to
                   obstruct, or renders dangerous for passage, any lake or
                   navigable river, bay, stream, canal, or basin, or any public
                   park, square, street, or highway;
                   (4) In any way renders other persons insecure in life, or in
                   the use of property.

SDCL 21-10-1. We agree with the circuit court’s conclusion that sections one, two

and four of SDCL 21-10-1 apply to this appeal.

[¶22.]       Additionally, “[f]or urban drainage of surface water, this Court has

adopted the ‘reasonable use’ rule.” First Lady, LLC v. JMF Prop., LLC, 2004 S.D.

69, ¶ 8, 681 N.W.2d 94, 98. “Under the reasonable use rule a landowner ‘is legally

privileged to make a reasonable use of his land, even though the flow of surface

water is altered thereby and causes some harm to others.’” Id. (quoting Mulder v.

Tague, 85 S.D. 544, 552, 186 N.W.2d 884, 889 (1971)). “The landowner, however,

becomes liable ‘when his harmful interference with the flow of surface waters is

unreasonable.’” Id. Factors that this Court has considered in evaluating

reasonableness include:

             (1) the respective uses of land and drainage water by each party;
             (2) topography;

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               (3) volume and direction of drainage;
               (4) consequences of drainage;
               (5) effects of artificial changes in drainage, such as grading, hard
               surfaces, and artificial drains;
               (6) alternatives; and
               (7) avoidance of unnecessary injury.

Id. ¶ 12, 681 N.W.2d at 99.

[¶23.]         Atlas’s use of its property was unreasonable. The record demonstrates

that the construction of the addition to Atlas’s manufacturing plant artificially

changed the property’s water drainage, topography, and elevation in such a way as

to negatively and unreasonably impact Strong’s property. The record reflects that

there are alternatives to this current use to avoid unnecessary injury, yet Atlas had

not taken any steps to remedy the water drainage issue. Instead, at the time of the

court trial, Atlas had listed the property at issue for sale. 5 Strong has

demonstrated actual success on the merits. The circuit court was within its

discretion to grant the preliminary and permanent injunctions in this matter.

[¶24.]         2.     Whether the circuit court erred in relying on Strong’s
                      testimony, which was impeached by Atlas.

[¶25.]         Atlas contends that the circuit court erred in relying on Strong’s

testimony at trial that she experienced water problems after Atlas added the

addition to its building. Atlas asserts that it used Strong’s deposition testimony

that the water problems began in 1995 to impeach Strong during cross-examination


5.       The circuit court noted: “Given the fact that the [Atlas] property which is the
         subject of this matter is currently listed for sale, there is a genuine concern
         [that Atlas] is continuing in its efforts to ignore the water drainage problem,
         perhaps now in an attempt to pass that problem onto the future property
         owner.”

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at trial. Atlas argues that “[t]he reason this impeachment was necessary [was]

because Defendant, [Atlas], built the addition to its plant in 1998.”

[¶26.]       The circuit court found that Strong “clarified under oath that[ ] she

previously misspoke during her deposition.” Additionally, the circuit court noted

that Strong repeatedly testified that the water problems began only after Atlas built

the addition to its building and that the record supported her testimony. Further,

the court remarked that Strong “was an extremely credible witness who has lived in

her house since it was built in 1990 and documented the water problem well with

pictures and other supporting documents, including precipitation reports.”

[¶27.]       The circuit court had the opportunity to observe Strong and to listen to

her testimony regarding when the water problems began in her home. The court

was also presented with photographs and documentary evidence supporting

Strong’s testimony. Ultimately, the circuit court was persuaded by Strong’s

credibility as a witness and the evidence she presented in support of her testimony.

We decline to substitute our judgment for that of the circuit court. Atlas has not

shown that the circuit court erred as to this issue.

[¶28.]       3.     Whether Strong’s delay in seeking injunctive relief
                    mitigates against any finding of irreparable harm.

[¶29.]       Atlas asserts that Strong’s 13 to 15 year delay in filing suit and the 14

month delay between filing suit and her request for a hearing on the injunctions

mitigates against any finding of irreparable harm. Atlas argues that although not

dispositive, these periods of delay are relevant in showing that Strong would not

suffer irreparable harm and that an injunction was not necessary.



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[¶30.]         As noted above, the circuit court adequately addressed all four factors

in ruling on Strong’s request for injunctive relief, including the second factor—

“[w]ould irreparable harm result without the injunction because of a lack of an

adequate and complete remedy at law[.]” See New Leaf, LLC, 2010 S.D. 100, ¶ 15,

793 N.W.2d at 35. Atlas concedes that any delay is not determinative as to whether

granting an injunction is appropriate. But rather, we consider whether irreparable

harm would result because of a “lack of an adequate and complete remedy at law.” 6

The circuit court found that there would be no end to the harm and that it was

difficult to quantify if an injunction were not granted. The court also noted that

Strong testified that monetary compensation would not solve the ongoing influx of

water from entering her home. Lastly, the circuit court commented that though it

would not consider settlement negotiations as to any liability, it would consider the


6.       In support of its argument, Atlas cites to Crow Creek Sioux Tribal Farms,
         Inc. v. U.S. I.R.S., 684 F. Supp. 2d 1152, 1158 (D.S.D. 2010). In Crow Creek,
         the plaintiffs waited to file their motion seeking a temporary restraining
         order until the day before the subject land was set for sale, even though the
         plaintiffs had known of the planned public auction for nearly six weeks. Id.
         at 1158. The district court noted that “[a]lso relevant, though not dispositive,
         to determining whether there would be irreparable harm is a party’s delay in
         seeking injunctive relief[.]” Id. (emphasis added). The court stated that “[t]he
         delay in filing the TRO motion may be viewed as indicating that the Plaintiffs
         would not suffer irreparable harm without the injunctive relief.” Id. The
         district court then went on to remark that “[b]ecause the [c]ourt expects to
         have this case concluded within the 180-day redemption period, there is an
         adequate remedy available to the Plaintiffs. The harm to the Plaintiffs, thus,
         is not irreparable, and injunctive relief is not warranted.” Id.

         The circuit court found that Strong, unlike the plaintiffs in Crow Creek, did
         not have an adequate and complete remedy at law. And the record supports
         the circuit court’s conclusion that Strong would suffer irreparable harm if an
         injunction were not granted. Therefore, the delay, while relevant, is not
         dispositive to our determination of whether Strong would be irreparably
         harmed.

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fact the negotiations probably corresponded to some delays in scheduling the

hearing. We agree. The circuit court did not abuse its discretion in determining

that irreparable harm would result without the injunction.

[¶31.]       4.     Whether there is sufficient evidence to show irreparable
                    harm to warrant an injunction.

[¶32.]       As a further extension of its argument from issues one and three, Atlas

asserts that Strong has failed to put forth sufficient evidence to show irreparable

harm to warrant an injunction. Atlas again points to Strong’s lack of remediation

efforts and her delay in seeking judicial relief as evidence of Strong’s failure to show

irreparable harm and bar her from receiving injunctive relief. Atlas also claims

that the circuit court not only improperly granted an injunction in this case, but

also rendered an opinion on the material facts, thus taking the case from the future

jury. Lastly, Atlas asserts that the circuit court “will have greatly prejudiced the

jury against [Atlas] by allowing the evidence regarding the injunction to be

admissible” at trial.

[¶33.]       As determined in issues one and three above, the circuit court did not

abuse its discretion in granting the injunction in this case. The court thoroughly

examined the factors in ruling on the request for an injunction. The court heard

testimony from several witnesses, weighed that testimony, and considered other

evidence in its decision. In addition, any argument relating to admissibility of

certain evidence at a future trial on damages does not enter into our consideration

today. Therefore, the circuit court did not err in granting the injunction in this

case.



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[¶34.]       5.     Whether the circuit court erred in assessing the public
                    interest.

[¶35.]       Lastly, Atlas contends that the circuit court erred in disregarding and

minimizing Atlas’s public interest evidence. Atlas asserts that any remediation

efforts to route water into the street would then damage property located downhill

from Strong’s property. Atlas argues that as a result, it would then be exposed to

more potential lawsuits by other landowners.

[¶36.]       The “public interest” is one factor in assessing whether injunctive relief

should be granted. See Dacy, 471 N.W.2d at 579. The circuit court determined that

the public interest would not be served if Strong were required to bring a suit every

time it rains fast or every time the snow melts quickly causing water to flow from

Atlas’s property to Strong’s property. The circuit court concluded that “[t]he public

interest is best served when litigation has an end point. If the requested injunction

is not granted, the problems faced by [Strong] will be never ending.”

[¶37.]       That is not to say, however, that the circuit court did not have the

opportunity to observe and listen to the testimony of Atlas’s expert, who warned of

potential water issues to downhill property owners if the water were to be diverted

to the street and off of Strong’s property. The court ultimately found the expert’s

testimony to “be of limited usefulness to the [c]ourt’s decision. The expert’s

conclusions on the facts of this case lacked sufficient foundation to be reliable or

complete.” Again, “[f]act finders are free to reasonably accept or reject all, part, or

none of an expert’s opinion.” Sauer, 2001 S.D. 24, ¶ 14, 622 N.W.2d at 745.

Accordingly, the circuit court did not err in examining the public’s interest in

granting injunctive relief in this case.

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                                     CONCLUSION

[¶38.]           We affirm the circuit court’s grant of the preliminary and permanent

injunctions. 7

[¶39.]           GILBERTSON, Chief Justice, and KONENKAMP, ZINTER and

SEVERSON, Justices, concur.




7.       At the close of Strong’s brief, counsel requested that this Court grant
         “Plaintiff/Appellee’s Motion for Attorney’s Fees and Costs,” yet counsel did
         not file a motion seeking such an award of fees and costs. Because counsel
         did not file a motion, this request is denied.

                                           -18-
