                            United States Court of Appeals
                                FOR THE EIGHTH CIRCUIT

                                         ___________

                                         No. 96-3299
                                         ___________

Myron D. Lhotka, Darlene Lhotka,                *
and Elroy Hanson, Receiver for                  *
the Myron Lhotka and Darlene                    *
Lhotka Receivership,                            *
                                                *
               Appellants,                      *
                                                *
       v.                                       *                                          Appea
                                                                                           l
                                                                                           from
                                                                                           t h e
                                                                                           Unite
                                                                                           d
                                                                                           State
                                                                                           s
                                              * District Court for the
United States of America and                  * District of Minnesota.
United States Fish and                        *
Wildlife Service,                             *
                                              *
               Appellees.                     *
                                              *
                                              *
                                         ___________

                                                    Submitted: March 13, 1997

                                                            Filed: May 30, 1997
                                         ___________

Before MAGILL,1 MURPHY, Circuit Judges, and GOLDBERG,2 Judge.
                               ___________




       1
        The Honorable Frank J. Magill, was an active judge at the time that this case was submitted
and assumed senior status on April 1, 1997, before the opinion was filed.
       2
         The Honorable Richard W. Goldberg, Judge, United States Court of International Trade,
sitting by designation.
GOLDBERG, Judge.

      Appellants Myron Lhotka, Darlene Lhotka, and Elroy Hanson3
(“Lhotkas”) appeal the district court's grant of summary judgment in favor
of the United States Fish and Wildlife Service, dismissing their state law
tort claims of trespass and nuisance. The district court granted summary
judgment because it determined (1) that the Lhotkas’ claims were time-
barred under the Federal Tort Claims Act (“FTCA”), 28 U.S.C. § 2401(b)
(1988), and (2) that the Lhotkas’ claims failed to state a prima facie case
of either trespass or nuisance under Minnesota state law.

      Because we find that the issue of when the Lhotkas’ claims accrued
involves factual questions beyond the scope of summary judgment, and that
the Lhotkas’ claims state a prima facie case of trespass and nuisance, we
respectfully reverse and remand the districts court’s order.


                                               I.

      We review the district court’s grant of summary judgment de novo.
Kiemele v. Soo Line Railroad Co., 93 F.3d 472, 474 (8th Cir. 1996). A
movant is entitled to summary judgment only upon a showing that there is
no genuine issue of material fact, and that the movant is entitled to a
judgment as a matter of law. Fed. R. Civ. P. 56(c). In applying this
standard, we view all facts in the light most favorable to the nonmoving
party, and draw all inferences in the nonmoving party’s favor. Kiemele,
93 F.3d at 474.

                                              II.




     3
         Hanson is the receiver for the Lhotkas’ farm.

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      In 1964, the Lhotkas sold a perpetual easement on their farm in
Mahnomen County, Minnesota to the United States for $2700. The easement
grants the Fish and Wildlife Service a right of access to maintain the
wetlands on the Lhotkas' farm as they existed on June 1, 1964. It also
allows the Lhotkas to continue farming the wetlands when they are dry due
to natural causes. Since it's creation, the easement has been the source
of both tension and litigation between the Lhotkas and the Fish and
Wildlife Service, including the present case.

      This case arises out of a 1990 district court order obtained by the
Fish and Wildlife Service compelling the Lhotkas to restore the wetlands
to their 1964 conditions. After the Lhotkas failed to comply with the
order, the Fish and Wildlife Service responded by restoring the wetlands
itself by constructing a series of six-inch dikes on the Lhotkas' farm.
This work was completed between October 5 and October 14, 1992.

      On September 30, 1995, the Lhotkas filed the instant action in the
United States District Court of Minnesota. They argue that the Fish and
Wildlife Service exceeded the scope of the easement when it constructed the
dikes because the dikes caused rain water to remain impounded on their
property for a longer period of time than it had in previous years, giving
rise to an injury for both trespass and nuisance. The Fish and Wildlife
Service moved for summary judgment. For purposes of summary judgment only,
the Fish and Wildlife Service have stipulated that the dikes exceed the
1964 conditions of the Lhotkas' farm. Tr. Oral Arg., June 21, 1996, at 6.

      The district court granted the Fish and Wildlife Service's motion for
summary judgment on two independent grounds.      First, it held that the
Lhotkas' claims were time- barred under 28 U.S.C. § 2401(b) because the
Lhotkas failed to bring suit within two years after the Fish and Wildlife
Service completed their construction of the dikes. Second, and in the
alternative, the district court held that the Lhotkas failed to state a




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prima facie case of trespass and nuisance under Minnesota state law because
the Fish and Wildlife Service constructed the dikes pursuant to a court
order. Hence, its entry was lawful. Tr. Oral Arg., June 21, 1996, at 18-
19.

      The Lhotkas appeal.    They argue that the statute of limitations
period began to run not when the Fish and Wildlife Service completed the
dikes in October 1992, but when the dikes caused abnormal levels of
flooding in October 1993.     They further argue that the district court
misapprehended the nature of their trespass and nuisance claims.        The
Lhotkas contend that whether the Fish and Wildlife Service lawfully entered
their property is irrelevant because it was not the entry, but the flooding
in excess of 1964 levels that constituted trespass and nuisance. For the
following reasons, we respectfully reverse and remand the decision of the
district court.

                                   III.

      Under the FTCA, a state law tort claim against the United States is
time-barred unless it is filed within two years “after such claim accrues.”
28 U.S.C. § 2401(b).     In United States v. Kubrick, 444 U.S. 111, 120
(1979), the Supreme Court held that under the FTCA, a claim accrues when
the plaintiff discovers both the injury and its cause. We have interpreted
this to mean that the claim accrues when the plaintiff "knows or reasonably
should know both the existence and cause of the injury." Slaaten v. United
States, 990 F.2d 1038, 1041 (8th Cir. 1993). Thus, in the present case,
the Lhotkas had two years to file a claim from the time that they actually
knew, or should have reasonably known, (1) that a trespass and nuisance
occurred and (2) that the Fish and Wildlife Service’s restoration work
caused them. We examine each element in turn.

      With respect to the first element, the Fish and Wildlife Service
contends that the Lhotkas should have reasonably known of the injury when
the restoration project was completed. Yet, the Fish and Wildlife Service
ignores two crucial facts. First, under




                                    -4-
the theory of trespass and nuisance asserted by the Lhotkas, outward signs
of any tort remained hidden until the rainy season began, and water
remained impounded on the property beyond the period of time in which it
normally would have dissipated.      It is undisputed that the Lhotkas’
property was dry when the Fish and Wildlife Service completed its work on
October 14, 1992, and that there was insubstantial rainfall until the
spring and summer of 1993. As a result, the Lhotkas could not have had
actual knowledge of these claims until after the summer of 1993.

      Second, the Lhotkas could not have assessed the latent water damage
because they lacked the technical expertise to evaluate the work completed
by the Fish and Wildlife Service and how it would affect the duration of
seasonal flooding. The Lhotkas are neither engineers nor hydrologists.
Therefore, for purposes of summary judgment, the district court could not
legally determine that the Lhotkas knew, or should have known, about an
injury in October 1992.

      Turning to the second element, namely causation, we also conclude
that the Lhotkas could not have known what caused the injury until the
injury itself was known or knowable. We believe that there is a strong
possibility that if the Lhotkas had brought suit immediately after the work
was completed, as the Fish and Wildlife Service contends they should have
done, the trial court would have then dismissed the action for failure to
state a claim: at that time, both the fact of injury and its cause were
simply too speculative for a court to provide any remedy.

      Thus, viewing the facts in the light most favorable to the Lhotkas,
we find that the district court could not determine that on October 14,
1992, the Lhotkas knew, or should have known, that an injury caused by the
Fish and Wildlife Service existed.     The Lhotkas’ lack of expertise to
assess latent conditions on the land, combined with the lack of rainfall
until the following year, prevent the district court from granting summary
judgment. Rather, this is a material issue of fact that is subject to
dispute. Therefore, the case is not appropriate for summary judgment on
this issue.




                                    -5-
Accordingly, we remand this case to the district court and instruct it to
determine when the claims accrued.



                                   IV.

      The district court also granted summary judgment because it found
that the Lhotkas had failed to state a prima facie case of trespass and
nuisance. In so doing, it reasoned that both trespass and nuisance require
that the entry on, or invasion of, the land of another be wrongful. Tr.
Oral Arg., June 21, 1996, at 18 (citing Garvis v. Employers Mutual Casualty
Co., 497 N.W.2d 254, 259 (Minn. 1993); Randall v. Village of Excelsior, 103
N.W.2d 131, 134 (Minn. 1960)). Here, because the Fish and Wildlife Service
entered pursuant to a court order and an easement, the district court
concluded that its entry could not be wrongful, hence the Lhotkas had
failed to articulate a prima facie case of either tort.

      We find that the district court construed the Lhotkas claims too
narrowly; trespass and nuisance encompass more than simply wrongful entry.
Trespass extends to any unlawful interference with one’s person, property,
or rights. Garvis, 497 N.W.2d at 259. Likewise, a claim of nuisance can
include any infringement of a legal right or interest, embracing not only
an invasion of property, but also an invasion of personal rights and
privileges. Excelsior, 103 N.W.2d at 134. Hence, when the district court
focused solely on whether the Fish and Wildlife Service's entry was lawful,
it ignored the Lhotkas' argument that the excess surface water constituted
trespass and nuisance.

      Significantly, under Minnesota law, the unwanted presence of water
on a plaintiff’s property resulting from a defendant’s actions constitutes
a nuisance under Minn. Stat. § 561.01. Highview North Apartments v. County
of Ramsey, 323 N.W.2d 65, 71 (Minn. 1982) (defendant’s use of water on his
own land may form the basis of




                                    -6-
a nuisance claim if it interferes with plaintiff’s use of his property).
Likewise, the Minnesota courts have also viewed the direct intrusion of
surface water onto a plaintiff’s land as a trespass action cognizable under
Minnesota state law. Id. at 72 (citing Pell v. Nelson, 201 N.W.2d 136
(Minn. 1972)) (defendant’s construction of a dike that unreasonably
interfered with flow of surface waters across plaintiff’s land constituted
a trespass); Will v. Boler, 4 N.W.2d 345 (Minn. 1942) (erecting a dam that
deprives plaintiff’s property of drainage is unreasonable and constitutes
a tort ).

      Therefore, when viewed in this light, the Lhotkas have stated a prima
facie case of trespass and nuisance. Thus, we find that the district court
erred when it held that there was neither trespass or nuisance as a matter
of law. We, therefore, instruct the district court to determine whether
the impounded water constitutes a trespass or nuisance if it determines
that the Lhotkas' claims are not time-barred.

                                    V.

      Accordingly, the judgment of the district court is reversed and
remanded. We instruct the district court to determine when the Lhotkas'
claims accrued, and whether they are time-barred. Should it determine that
the Lhotkas' claims are not time-barred, the district court is further
instructed to reach the merits of their trespass and nuisance claims.

     A true copy.

           Attest:

                CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.




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