#27368-a-JMK
2017 S.D. 79

                             IN THE SUPREME COURT
                                     OF THE
                            STATE OF SOUTH DAKOTA

                            ****
MARK AND MARILYN LONG,
ARNIE AND SHIRLEY VAN VOORST,
TIM AND SARA DOYLE,
TIMOTHY AND JANE GRIFFITH
AND MICHAEL and KAREN TAYLOR,                Plaintiffs and Appellees,

      v.

STATE OF SOUTH DAKOTA,                       Defendant and Appellant.

                                    ****
                   APPEAL FROM THE CIRCUIT COURT OF
                      THE SECOND JUDICIAL CIRCUIT
                    LINCOLN COUNTY, SOUTH DAKOTA
                                    ****
                   THE HONORABLE PATRICIA C. RIEPEL
                            Retired Judge
                                    ****

MARK V. MEIERHENRY
CHRISTOPHER HEALY
CLINT SARGENT of
Meierhenry Sargent, LLP
Sioux Falls, South Dakota                    Attorneys for plaintiffs
                                             and appellees.


GARY P. THIMSEN
JOEL E. ENGEL III of
Woods, Fuller, Shultz & Smith, PC
Sioux Falls, South Dakota                    Attorneys for defendant
                                             and appellant.



                                    ****
                                             ARGUED ON
                                             JANUARY 12, 2016

                                             OPINION FILED 11/21/17
#27368

KERN, Justice

[¶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.


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[¶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.]        In 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


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Data Sheet provided that a 100-year-rain event would involve water flowing

towards the culverts at 803 cfs. A 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




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a five-year-rain event. Prior to these events, Landowners had not experienced

surface flooding.1

[¶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. 2013 S.D. 13, 827 N.W.2d 55. Instead,

Landowners elected to proceed only on their inverse condemnation claim directly

under Article VI, § 13 of the South Dakota Constitution for damage to their

property. Thereafter, Landowners and the City reached a confidential settlement.

The State sought permission to bring a cross-claim against the City seeking

contribution and indemnity based upon a determination of relative degrees of fault.

The circuit court permitted the filing of the cross-claim over Landowners’ objection.

[¶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



1.       Some Landowners had experienced prior flooding in their homes due to sump
         pump issues.

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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.

[¶11.]       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 in 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 overtop

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


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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
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                      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.2 The State

also contends that sovereign immunity applies because the “decisions regarding the

placement, engineering, and design of Highway 11, along with decisions

regarding . . . [the] culverts, were discretionary acts[.]” Whether a plaintiff’s claim

is precluded by sovereign immunity is a question of law reviewed de novo. Truman

v. Griese, 2009 S.D. 8, ¶ 10, 762 N.W.2d 75, 78.

[¶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



2.       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, 535 N.W.2d 896, 898-900 (S.D. 1995).

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#27368

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.” 2013 S.D. 13, ¶

43, 827 N.W.2d at 71. “The abrogation of a governmental entity’s sovereign

immunity in cases involving a taking or damaging of private property is so

fundamental that it is not found in statute, but rather in our Bill of Rights in the

Constitution.” Id. As we noted in Hurley v. State, “[n]either consent to sue the

state nor the creation of a remedy by legislative enactment is necessary to obtain

relief for a violation of the [Constitution].” 82 S.D. 156, 169, 143 N.W.2d 722, 729

(1966). Accordingly, the State is not shielded by sovereign immunity from

Landowners’ inverse condemnation claims.

[¶18.]         Citing Hannaher v. St. Paul, Minneapolis & Manitoba Railway Co., 5

Dakota 1, 37 N.W. 717 (1888), the dissent concludes that Landowners’ inverse

condemnation claim was actually a tort for which they cannot be compensated. In

Hannaher, plaintiff filed a tort claim against the railroad alleging that the

construction of an embankment, ditches, and culverts, necessary to construct the

railroad track, cast flood waters upon plaintiff’s lands and crops. 37 N.W. at 717-18.

Notably, plaintiff did not plead a taking.3 See id. The Court questioned whether



3.       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, 2006 S.D. 8, ¶ 41
         n.4, 710 N.W.2d 131, 146 n.4.

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#27368

plaintiff could maintain the negligent construction claim as pleaded, “although

defendant had a right to do what it did, and although the act complained of was

done in the usual and ordinary manner, with the usual and ordinary care and

skill[.]” Id. at 720. Ultimately, the Court determined that when the railroad

condemned plaintiff’s property to construct the track, “the compensation made [wa]s

understood to cover all the damages naturally arising, and reasonably expected to

flow, from the proper construction and maintenance of the [railroad].” Id. at 721.

[¶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 11.4 Further, the State did not claim below, nor does it


4.       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 even occurred in
         1949.
         The present case is also distinguishable from Johns v. Black Hills Power,
         Inc., 2006 S.D. 85, 722 N.W.2d 554. In that case, Johns brought a claim for
         inverse condemnation against Black Hills Power alleging that an anchor pole
         and guy wires placed on the property before they had purchased the property
         constituted a permanent taking. Id. ¶ 9, 722 N.W.2d at 557. The Court
         determined that any cause of action for inverse condemnation belonged to the
         prior owners and that the Johns lacked standing to maintain the action. Id.
         ¶ 12, 722 N.W.2d at 558. The reasoning of the Court was that the anchor
         pole and guy wires were obvious to the Johns when they purchased the
         property and that “any diminution in value caused by the placement of the
         pole and wires presumably was reflected in the purchase price.” Id. The
         same is not true in this case. There was not any evidence in the record that

                                                                  (continued . . .)
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claim now, that the flooding in 2010 was within the scope of the right previously

acquired by the State to construct the highway. See infra ¶ 69. It is incumbent on

the appellant, in this case the State, to present an adequate record on appeal.



(. . . continued)
         the potential for flooding was obvious to Landowners and that diminution for
         such a risk was reflected in their purchase price.
      Further, this case is distinguishable from Palazzo v. Rhode Island, 533 U.S.
      606, 121 S. Ct. 2448, 150 L. Ed. 2d 592 (2001). Palazzo involved a regulatory
      taking claim against the State of Rhode Island after it designated
      Landowner’s land “protected coastal wetlands.” Id. at 614-15, 121 S. Ct.
      2455-56. Landowner sued for inverse condemnation, alleging that certain
      wetlands regulations deprived him of all economically beneficial use of his
      property. Id. at 615, 121 S. Ct. 2456. The State claimed that Landowner
      could not maintain his claim because when title of the land was transferred
      from the corporation, in which Landowner was the sole shareholder, to
      Landowner as an individual, the wetlands regulations were already in effect.
      Id. at 626, 121 S. Ct. at 2462. The Court rejected the argument, providing
      that “[f]uture generations, too, have a right to challenge unreasonable
      limitations on the use and value of land.” Id. at 627, 121 S. Ct. at 2448. The
      present case did not involve a regulatory taking. And while it is a correct
      statement of the law that “any award goes to the owner at the time of the
      taking, and that the right to compensation is not passed to a subsequent
      purchaser[,]” see infra ¶ 69, quoting Palazzo, such a statement is inapplicable
      here where there is no evidence of a taking in 1949.
      Instead, this case is more similar to Smith v. Charles Mix County, 85 S.D.
      343, 182 N.W.2d 223 (1970). In Smith, Landowner brought an inverse
      condemnation claim against the County alleging that the placement of two
      culverts in a highway abutting Landowner’s cropland diverted flood waters
      onto his fields. Id. at 345, 182 N.W.2d at 224. The County acquired the
      highway from the Department of the Interior in 1957 and subsequently made
      improvements. Id. at 345, 182 N.W.2d at 223-24. The flooding to
      Landowner’s field did not occur until 1967—ten years after the County
      acquired the highway. Id. at 345, 182 N.W.2d at 224. The Court concluded
      that the County’s actions constituted “a compensable taking or damaging [of]
      private property for a public use . . . .” Id. at 346. Notably absent from the
      Court’s analysis was an insistence that the County acquired the right to flood
      Landowner’s fields when it acquired the highway from the Department of
      Interior in 1957, or that the taking actually occurred in 1957 and either
      Landowner or his predecessor was already compensated for such an
      occurrence.

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Klutman v. Sioux Falls Storm, 2009 S.D. 55, ¶ 36, 769 N.W.2d 440, 453. And the

Court “has said on countless occasions that an issue may not be raised for the first

time on appeal.” Mortweet v. Eliason, 335 N.W.2d 812, 813 (S.D. 1983).

[¶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.” 2013 S.D. 13, ¶ 44, 827 N.W.2d at 71.

As a result, we held that even though the Ruperts pleaded claims for tort and a

taking, the Ruperts’ recovery was limited to “‘just compensation’ pursuant to Article

VI, § 13, of the South Dakota Constitution.” Id. Likewise in this case, the State

validly exercised its authority in constructing, reconstructing, and maintaining

Highway 11 from the time of construction through the time of the flood.

Consequently, a theory of tort could not be supported. Landowners properly

dismissed their tort claim and their recovery was limited to just compensation.

             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.



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[¶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, 2006 S.D. 10, 709 N.W.2d 841. Under

our holding in Krier, Landowners must establish that the injury to their property

was peculiar in nature and not of the kind suffered by the public as a whole. 2006

S.D. 10, ¶ 26, 709 N.W.2d at 847-48.

                      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.5 However, the State

further argues that “the evidence adduced at trial did not establish that the State’s

construction of Highway 11, along with accompanying culverts, was the proximate,

substantial, or immediate cause of the flood that damaged the [Landowners’]

properties.” (Emphasis added.) In response, Landowners contend that the State’s

attempt to expand the requirements of proximate cause by adding the terms

substantial and immediate is contrary to our most recent pronouncement in Rupert.

In Rupert, we affirmed the circuit court’s determination that the landowners must

establish that the government’s action was the legal cause of the invasion which led


5.       Several jurisdictions apply the common law tort principle of causation to
         inverse condemnation claims. See, e.g., Bakke v. State, 744 P.2d 655, 657
         (Alaska 1987); Belair v. Riverside Cty. Flood Control Dist., 764 P.2d 1070,
         1074-76 (Cal. 1988) (holding that “there must be a showing of ‘a substantial
         cause-and-effect relationship excluding the probability that other forces alone
         produced the injury.’”); Thelen v. City of Billings, 776 P.2d 520, 522-25 (Mont.
         1989); Henderson v. City of Columbus, 811 N.W.2d 699, 713-19 (Neb. Ct. App.
         2012), rev’d on other grounds, 827 N.W.2d 486 (Neb. 2013); Aasmundstad v.
         State, 763 N.W.2d 748, 755-59 (N.D. 2008); Kopplow Dev., Inc. v. City of San
         Antonio, 399 S.W.3d 532, 539 (Tex. 2013).

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to the damage. See 2013 S.D. 13, ¶ 17, 827 N.W.2d at 63. Our jurisprudence

defines proximate or legal cause. We find no reason to depart from this definition

for cases of inverse condemnation, nor have we done so in prior cases. Proximate

cause or legal 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. Such

cause need not be the only cause of a result. It may act in combination with other

causes to produce a result.’” Peterson v. Issenhuth, 2014 S.D. 1, ¶ 17, 842 N.W.2d

351, 355-56 (quoting Estate of Gaspar v. Vogt, Brown & Merry, 2003 S.D. 126, ¶ 6,

670 N.W.2d 918, 921). As we noted in Rupert, there is “no magic formula that

enables a court to judge, in every case, whether a given government interference

with property is a taking.” 2013 S.D. 13, ¶ 10, 827 N.W.2d at 61 (quoting Ark.

Game & Fish Comm’n v. United States, 568 U.S. 23, 31, 133 S. Ct. 511, 518, 184 L.

Ed. 2d 417 (2012)). “Instead, the viability of a takings claim . . . depend[s] upon

situation-specific factual inquiries.” Id.

[¶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 package

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-


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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.6

The court found that Goeden admitted that the “cause of the flood was water held

back by the State’s improvements known as Highway 11.” Based on the testimony

of these two witnesses, the court found that blockage of the natural flow of the

Spring Creek watershed by the construction of Highway 11 was a legal cause of the

flooding and damaging of Landowners’ properties. The State’s drainage plan for the

watershed was insufficient to drain the natural watercourses. The State’s design

pushed water into the closed basin to avoid overtopping Highway 11 causing

Landowners’ damages.

[¶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, 2014 S.D. 76, ¶ 39, 855 N.W.2d 855, 867. “This does not mean, of course,

that the precise events which occurred could, themselves, have been foreseen as


6.       Flows of 803 cfs would constitute a 100-year-rain event.

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they actually occurred; only that the events were within the scope of the foreseeable

risk.” Musch v. H-D Co-op., Inc., 487 N.W.2d 623, 625 (S.D. 1992).

[¶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.”7 Infra ¶ 63. However, the dissent misapprehends how

this Court views foreseeability as it relates to duty and causation. Our Court has

recognized that “foreseeability for purposes of establishing a duty is not invariably

the same as the foreseeability relevant to causation.” Poelstra v. Basin Elec. Power

Co-op., 1996 S.D. 36, ¶ 18, 545 N.W.2d 823, 827. “The latter essentially is to be

viewed as of the time when the damage was done while the former relates to the

time when the act or omission occurred.” Id. Thus, Landowners are not required to

prove that their losses were foreseeable when the State constructed Highway 11 in

1949, i.e., when the act occurred. Rather, to determine foreseeability as it relates to

causation, we must look to when the damage was done. The standard is whether




7.       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.

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the damage “ought to have been foreseen in the light of the attending

circumstances.”8 Musch, 487 N.W.2d at 625.

[¶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



8.       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 “[d]amages 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., 29 S.D. 220, 231,
         136 N.W. 92, 96 (1912), for the notion that “damages to be recompensed for
         under the law of eminent domain are . . . only such as could be anticipated by
         a jury in the trial of an action brought before the ‘damage’ had taken place.”
         This is simply a prohibition against speculative damages in an eminent
         domain proceeding. See, e.g., State v. Richey Motor Co., 270 N.W.2d 48, 51
         (S.D. 1978) (“Respondent is entitled to just compensation based upon the
         actual situation, not to speculative compensation based upon a hypothetical
         situation.”). The dissent does not point to any specific damages awarded to
         Landowners that were speculative.

                                            -16-
#27368

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, 2000 S.D. 9, ¶ 25, 604 N.W.2d 487, 494. We review a circuit court’s

findings of fact for clear error. Schieffer v. Schieffer, 2013 S.D. 11, ¶ 15, 826 N.W.2d

627, 633, reh’g denied (Mar. 12, 2013). Accordingly, a finding of fact will be

overturned on appeal, only if “a complete review of the evidence leaves this Court

with a definite and firm conviction that a mistake has been made.” Id.

[¶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


                                          -17-
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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 determine 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. 85

S.D. 343, 182 N.W.2d 223. In Smith, we affirmed the judgment finding the county

liable for intentionally draining water onto farmland in order to protect a county

highway. Id. at 345-46, 182 N.W.2d at 224. In forming this conclusion, we referred

to Bruha v. Bochek, where we stated,

             [T]he owner of the dominant land, in the exercise of a reasonable
             use of his 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

                                         -18-
#27368

             drain, provided he does not permit an accumulation of water on
             his property and cast the same on the servient land in unusual
             or unnatural quantities.

76 S.D. 131, 133, 74 N.W.2d 313, 314 (1955). These principles, we held, applied to a

county’s “construction, improvement, and maintenance of its highways.” Smith, 85

S.D. at 346, 182 N.W.2d at 224. “[A] county cannot divert surface waters into

unnatural watercourses or gather water together in unnatural quantities and then

cast it upon lower lands in greater volume and in a more concentrated flow than

natural conditions would ordinarily permit.” Id. Damages caused by such an act

“constitute a compensable taking or damaging of private property for public use

under Section 13, Article VI, S.D. Constitution.” Id.

[¶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 Rupert. The City of Rapid City,

relying on City of Brookings v. Mills, 412 N.W.2d 497, 501 (S.D. 1987), argued that

the Ruperts were required to prove that the damage to their property was the result

of a “direct and substantial action or abuse” by Rapid City. Rupert, 2013 S.D. 13, ¶

11, 827 N.W.2d at 61-62. In rejecting this argument, we found that the requirement

to show “proof of a ‘direct and substantial action by the government’ in inverse

condemnation cases was limited to causes of action for a ‘de facto taking’ where the

governmental entity delayed condemning the property” and Landowners were

injured by the delay. Rupert, 2013 S.D. 13, ¶ 14, 827 N.W.2d at 62. As Landowners




                                         -19-
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herein are not alleging a de facto taking, they are not obligated to prove the

intentional conduct involved a direct and substantial action or abuse.

[¶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

29–30, 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


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the record, we are not left with “a definite and firm conviction that a mistake has

been made.” Schieffer, 2013 S.D. 11, ¶ 15, 826 N.W.2d at 633.

                    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. 2006 S.D. 10, ¶6, 709 N.W.2d at 844. We held that “[a]

plaintiff can recover under the consequential damages rule if he or she can prove

‘the consequential injury is peculiar to their land and not of a kind suffered by the

public as a whole.’” Id. ¶ 26, 709 N.W.2d at 847-48 (quoting State Highway Comm’n

v. Bloom, 77 S.D. 452, 461, 93 N.W.2d 572, 577 (1958)). Further, we determined

that the injury “must be different in kind and not merely in degree from that

experienced by the general public.” Id. Krier did not claim “the injury to his

property [was] unique from that suffered by other landowners[.]” Instead, he

contended that “his property ha[d] diminished in value as a result of the

resurfacing.” Id. ¶ 28, 709 N.W.2d at 848. We found the injury to Krier’s property


                                         -21-
#27368

was the same as the injury to the other properties differing only in amount or

degree. Id. We affirmed the circuit court’s grant of summary judgment, finding

“Krier ha[d] failed to produce any evidence of a separate and distinct injury[.]” Id.

[¶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 15-8-15.2,9 and other

provisions of the Joint Tortfeasor’s Act, it should have been permitted to present the

issue of the City’s liability to the jury and seek from the jury an apportionment of




9.       SDCL 15-8-15.2 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.”

                                           -22-
#27368

fault.10 In response, Landowners point out that this case involves a constitutional

claim for damaging property rather than a tort claim, and as such the Joint

Tortfeasor’s Act does not apply. We agree with Landowners.

[¶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, 771 F. Supp. 911 (N.D. Ill.

1991), the State maintains that the Joint Tortfeasor’s Act applies to inverse

condemnation proceedings. However, the State fails to recognize the specific

limitations on contribution. “At common law and prior to 1945 in this state no right

of contribution existed among joint tortfeasors.” Burmeister v. Youngstrom, 81 S.D.

578, 585, 139 N.W.2d 226, 230 (1965). In 1945, the Legislature adopted the Joint

Tortfeasor’s Act. See 1945 S.D. Sess. Laws ch. 167. The Act is now codified at

SDCL 15-8-11 to 15-8-22. Accordingly, the right of contribution is a statutory

creature born from the Legislature.

[¶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., 489




10.      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.

                                            -23-
#27368

N.W.2d 353, 364 (S.D. 1992). Had the Legislature intended to extend the Act to

cases involving inverse condemnation, it certainly could have done so. But it did

not. The State asks us to extend the statutory right because the Landowners’ initial

pleading contained a tort claim. However, as noted above, Landowners dismissed

their tort claim well in advance of the trial and proceeded on the sole theory of

inverse condemnation. The State also argues that we should apply the Act because

Landowners’ “theory of the case was based on negligence principles.” While we

recognized the similarities between inverse condemnation and tort claims in Issue

2, we applied the common-law principle of causation to inverse condemnation. And

that is within our purview to do so. We must decline, however, to extend the

provisions of a right created by statute. As such, the State was not entitled to file a

cross-claim against the City seeking contribution under the Joint Tortfeasor’s Act.

[¶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.


                                          -24-
#27368

Sauer v. Tiffany Laundry & Dry Cleaners, 2001 S.D. 24, ¶ 14, 622 N.W.2d 741, 745.

After a thorough review of the record, we do not find the circuit court’s findings of

fact to be clearly erroneous.

[¶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, 77 S.D. at 470, 93 N.W.2d at 582 (emphasis added). While Landowners’

award was excessive, it was not based on speculation or conjecture.

[¶43.]       Further, on appeal, the State only seeks recovery under the Joint

Tortfeasor’s Act. Recovery under the Joint Tortfeasor’s Act provides only one

remedy, and that remedy is only against the joint tortfeasor 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.


                                         -25-
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             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. 83 S.D. 198, 157 N.W.2d 26 (1968). The

State submits that Landowners should not be compensated for both permanent

damage to their properties and for future floods. Landowners respond that

“[d]uring five years of litigation, a drainage easement over the property was never

pled, never argued, never described, never valued, never noticed, and never even

mentioned [by the State].”

[¶45.]       At the conclusion of the trial on liability in this case, 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 submitted

proposed judgments to the trial court. Each of the State’s proposed judgments

contained the following language: “As a result of the 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. 83 S.D. at

200, 157 N.W.2d at 28. Landowners alleged that their properties were flooded by

                                          -26-
#27368

overflow from a local lake and that the overflow was caused by the county’s

diversion of water. Id. The circuit court found for Landowners and granted both

permanent damages for the flooding and an injunction prohibiting the county from

diverting water onto Landowners’ properties. Id. The Court reversed the award of

injunctive relief on appeal. 83 S.D. at 207, 157 N.W.2d at 31-32. It determined that

the grant of both injunctive relief and permanent damages was inconsistent. Id. It

was inconsistent because when a landowner is compensated for a permanent taking

of their property, “it would follow that the county [is] being required to pay for the

right to permanently flood [the property] to the extent of the flooding here

involved.” 83 S.D. at 207, 157 N.W.2d at 31. The Court stated, “To enjoin a party

from causing water to flow onto an area that it had acquired the right to

permanently flood would create an anomalous situation.” 83 S.D. at 207, 157

N.W.2d at 32.

[¶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 permanent 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, 2013 S.D. 13, ¶ 23,

827 N.W.2d at 65 (quoting Gross v. Conn. Mut. Life Ins. Co., 361 N.W.2d 259, 272

(S.D. 1985)).




                                          -27-
#27368

[¶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, 83 S.D. at 207, 157 N.W.2d at 31. In

keeping with Heezen, the State, in the present case, has a right to permanently

flood Landowners’ properties “to the extent of the flooding here involved.”

[¶49.]         We agree with the general notion that the State can obtain an

easement in an inverse condemnation action when permanent damages are

awarded.11 But in this case, the State failed to define the scope and boundaries of

any purported easement or present evidence on valuation.12 The State simply




11.      See, e.g., K & W Elec., Inc. v. State, 712 N.W.2d 107, 116 (Iowa 2006) (“When
         the flooding is intermittent rather than continual, the fee remains in the
         property owner, subject to an easement in the governmental entity to
         overflow the property with water.”).

12.      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, 2010 S.D. 60, ¶ 30, 786 N.W.2d 360, 371 (reiterating that the
         description in SDCL 21-35-2 must be made with “substantial accuracy-that
         certainty by means of which a reasonably competent person could take the
         instrument and therefrom, aided by such inquiries as it suggests, locate the
         identical property . . . the certainty required in the description of the land in
         a condemnation proceeding ‘is of the same nature as that required in
         conveyances of land, so that a surveyor could go upon the land and mark out
         the land designated.’” (quoting City of Sioux Falls v. Mo. Basin Mun. Power
         Agency, 2004 S.D. 14, ¶ 12, 675 N.W.2d 739, 742-43)). Failure to adequately
         describe the property results in dismissal of the action. Id. We see no reason
         why this requirement should greatly differ in an inverse condemnation
                                                                       (continued . . .)
                                              -28-
#27368

submitted language in its proposed judgment requesting “a drainage easement over

the subject property in perpetuity.” Such a broad grant leaves many unanswered

questions. For example, under the requested easement, may the State enter and

remain on Landowners’ properties; work in the easement area; construct or place

equipment and other items on Landowners’ properties? If permitted to do so, must

the State pay separately for any resulting damages caused by construction or

maintenance on Landowner’s properties?

[¶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, 741 S.W.2d 16, 18-19 (Mo. 1987) (en banc) (barring

subsequent recovery in inverse condemnation claim under principles of res judicata

because plaintiffs were previously compensated in prior action).13 The adjudication



(. . . continued)
         proceeding when the State affirmatively seeks an easement as alternative
         relief.

13.      “[T]he doctrine of res judicata bars 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, 2010 S.D. 60, ¶ 24, 786 N.W.2d at 369 (quoting Dakota Plains AG
         Center, LLC v. Smithey, 2009 S.D. 78, ¶ 19, 772 N.W.2d 170, 179). Res
         judicata applies when (1) “the issue decided in the former adjudication was
         identical to the present issue;” (2) there was “a final adjudication on the
                                                                       (continued . . .)
                                             -29-
#27368

herein involved an award of damages for flooding during an eight-year-rain event

with the twin 48-inch and single 24-inch culvert design in place. Landowners have

been fully compensated with permanent damages for flooding under those facts and

the properties may no longer be the subject of claims for the same type of flooding.

                                    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




(. . . continued)
         merits;” (3) “the parties in the two actions [were] the same or in privity;” and
         (4) there was “a full and fair opportunity to litigate the issues in the prior
         adjudication[.]” D.G. v. D.M.K., 1996 S.D. 144, ¶ 27, 557 N.W.2d 235, 240
         (quoting Wintersteen v. Benning, 513 N.W.2d 920, 921 (S.D.1994)).

                                           -30-
#27368

extent and in the same manner as proven at trial for which Landowners were

compensated.

[¶52.]          Affirmed.

[¶53.]          SEVERSON, Justice, concurs.

[¶54.]          ZINTER, Justice, concurs specially.

[¶55.]          GILBERTSON, Chief Justice, and BARNETT, Circuit Judge, dissent.

[¶56.]          BARNETT, Circuit Judge, sitting for WILBUR, Retired Justice,

disqualified.

[¶57.]          JENSEN, Justice, not having been a member of the Court at the time

this action was submitted to the Court, did not participate.



ZINTER, Justice (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 landowners could recover in inverse condemnation only if they

identified specific evidence showing that the damage to their homes in 2010 was

foreseeable in 1949 when the State might have taken other property to construct

the highway.14 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;



14.      The State’s theory was that Landowners failed to prove causation because
         the rain event was either an act of God or supervening event, or that
         increased urbanization contributed to excess run-off and soil saturation.
         Temporal foreseeability was not argued or addressed.

                                           -31-
#27368

                  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 plaintiff’s recovery must be directly offset by the settlement
                   received from a codefendant, especially a codefendant who has 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,15 the Court correctly declines to now try them in this appeal.

[¶59.]         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.



GILBERTSON, Chief Justice (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



15.      The State briefed the general issues of causation, but not temporal
         foreseeability. The State briefed contribution and indemnity, but only as a
         cross-claim against the codefendant City.

                                          -32-
#27368

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.,

2016 S.D. 90, ¶ 13 n.9, 888 N.W.2d 217, 224 n.9 (quoting Breidert v. S. Pac. Co.,

394 P.2d 719, 721 n.1 (Cal. 1964) (en banc)). “Inverse condemnation law is tied to,

and parallels, tort law. One of the principles of tort law that is applicable to the

inverse condemnation context is proximate cause.” 9 Patrick J. Rohan & Melvin A.

Reskin, Nichols on Eminent Domain § G34.03[1] (3d ed., rel. 125-5/2017); see also

Schliem, 2016 S.D. 90, ¶ 14, 888 N.W.2d at 224 (limiting compensation under

Article VI, § 13, to legal injuries). A property owner who fails to establish

proximate causation is not entitled to compensation. See 9 Rohan & Reskin, supra,

§ G34.03[1].

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[¶62.]       As the Court notes, “[p]roximate 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, 2017 S.D. 17, ¶ 7, 894 N.W.2d 391,

395 (emphasis added) (quoting Hamilton v. Sommers, 2014 S.D. 76, ¶ 39,

855 N.W.2d 855, 867). The first half of this definition requires the plaintiff to prove

the loss was foreseeable. Hamilton, 2014 S.D. 76, ¶ 39, 855 N.W.2d at 867; State v.

Ruth, 9 S.D. 84, 92-93, 68 N.W. 189, 191 (1896) (“[I]n order to warrant a finding

that . . . an act . . . is the proximate cause of an injury, it must appear that the

injury was the natural and probable consequence of the . . . act, and that it ought to

have been foreseen, in the light of the attending circumstances.”). The second half

requires the plaintiff to prove the conduct complained of is a but-for cause of the

loss. Compare Howard, 2017 S.D. 17, ¶ 7, 894 N.W.2d at 395 (requiring a cause to

be one “without which the result would not have occurred” (quoting Hamilton,

2014 S.D. 76, ¶ 39, 855 N.W.2d at 867)), with Cause, Black’s Law Dictionary

(10th ed. 2014) (defining the term but-for cause as “[t]he cause without which the

event could not have occurred”). Thus, proving but-for causation is not sufficient to

establish a right to compensation—the plaintiff also has the burden of proving

foreseeability.

[¶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., 29 S.D. 220, 231, 136 N.W. 92, 96 (1912) (“The damages

to be recompensed for under the law of eminent domain are . . . only such as could

be anticipated by a jury in the trial of an action brought before the ‘damage’ had


                                           -34-
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taken place.”).16 The circuit court found that when Highway 11 was constructed in

1949, the surrounding area was undeveloped farmland. The first of Landowners’

homes was not constructed until 1974. The court also found that none of

Landowners’ properties had been flooded prior to July 2010. And as Landowners

recognized in their complaint, the upstream population contributing to runoff

increased significantly between 1949 and 2010.17 Thus, Landowners had the



16.   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, 29 S.D.
      at 231, 136 N.W. at 96 (“The damages to be recompensed for under the law of
      eminent domain are . . . such as could be anticipated by a jury in the trial of
      an action brought before [(i.e., not after)] the ‘damage’ had taken place.”
      (emphasis added)), and 4A Julius L. Sackman, Nichols on Eminent Domain
      § 14.03[2][c][iv] (3d ed., rel. 124-11/2016) (“Damages 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)), with supra ¶ 27 (“Landowners are not required to prove that their
      losses were foreseeable when the State constructed Highway 11 in 1949[.]”).
      Moreover, the case relied on by the Court only undermines the Court’s
      conclusion that Landowners were not required to prove their losses were
      foreseeable when the action at issue occurred. Like the statement it
      disagrees with, the Court claims that “[t]he standard is whether the damage
      ‘ought to have been foreseen in the light of the attending circumstances.’”
      Supra ¶ 27 (emphasis added) (quoting Musch v. H-D Coop., Inc., 487 N.W.2d
      623, 625 (S.D. 1992)). In Musch, we specifically rejected the view that
      foreseeability should be determined by “looking back from the harm to the
      actor’s . . . conduct[.]” 487 N.W.2d at 624, 626 (quoting Restatement (Second)
      of Torts § 435 (Am. Law Inst. 1965)).

17.   In their complaint, Landowners asserted that “[t]he population of Sioux Falls
      in 1950 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
                                                                   (continued . . .)
                                         -35-
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burden of proving that when the State constructed Highway 11 in 1949, it was

probable—not merely possible—that 61 years later, runoff from a population base

more than triple the size of that in 1949 would combine with severe rainstorms to

destroy homes that had not been built in a community that did not exist.

[¶64.]         Landowners did not provide any evidence relevant to the question of

foreseeability. The circuit court’s factual findings do not address this issue.18

Likewise, in their brief to this Court, Landowners argue only that “[a]bsent the

State improvement, water would have flown [sic] freely from the properties.” As the

Court notes, Landowners’ expert witness “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.” Supra ¶ 24. And in their brief to this Court, Landowners similarly

summarize their expert’s testimony: “Mr. Mainelli testified that but for the State’s

obstruction of the natural drainageway with Highway 11 and the inadequate

culverts passing underneath, the property would not have flooded.” (Emphasis

added.) Thus, these findings and this testimony only establish but-for causation

(i.e., that the construction of Highway 11 is a cause “without which the result would

not have occurred”). See Howard, 2017 S.D. 17, ¶ 7, 894 N.W.2d at 395; Cause,


(. . . continued)
         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.

18.      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.

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Black’s Law Dictionary (10th ed. 2014). These findings and this testimony simply

do not address the question of foreseeability.19

[¶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[1]. 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, 2014 S.D. 76, ¶ 39, 855 N.W.2d

at 867; Ruth, 9 S.D. at 92-93, 68 N.W. at 191. Because the Court today affirms

solely on a showing of but-for causation, any public improvement undertaken by the

State will result in essentially unlimited liability. As the United States Supreme

Court has noted:

               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


19.      The Court concludes that “[a]lthough 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.

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               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., 503 U.S. 258, 266 n.10, 112 S. Ct. 1311, 1316 n.10,

117 L. Ed. 2d 532 (1992) (quoting W. Page Keeton et al., Prosser and Keeton on the

Law of Torts § 41, at 264 (5th ed. 1984)).20 Therefore, the absence of evidence on

the issue of foreseeability is singularly sufficient to warrant reversal.

               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, 2013 S.D. 13, ¶ 43, 827 N.W.2d 55, 71. Therefore, in

determining whether Landowners are entitled to compensation, the threshold

question in this case is whether the claim presented by Landowners is actually one

of inverse condemnation or if it is instead one of tort. In answering this question,

we may not simply accept the label used in the complaint. “[T]he viability of a

takings claim is dependent upon ‘situation-specific factual inquiries.’” Id. ¶ 10,



20.      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.

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#27368

827 N.W.2d at 61 (quoting Ark. Game & Fish Comm’n v. United States, 568 U.S. 23,

32, 133 S. Ct. 511, 518, 184 L. Ed. 2d 417 (2012)).

[¶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, 2016 S.D. 90, ¶ 14, 888 N.W.2d

at 224. “[T]he word damaged, as used in the South Dakota Constitution,

contemplates only legal injury.” Id. ¶ 14, 888 N.W.2d at 225. Legal injury does not

exist when an alleged loss falls within the scope of a right previously acquired by

the State. See State ex rel. Dep’t of Transp. v. JB Enters., Inc., 2016 S.D. 89, ¶ 27

n.4, 889 N.W.2d 131, 138 n.4; Morris Family, LLC ex rel. Morris v. S.D. Dep’t of

Transp., 2014 S.D. 97, ¶ 20, 857 N.W.2d 865, 872; Kirby v. Citizens’ Tel. Co. of Sioux

Falls, 17 S.D. 362, 365-67, 97 N.W. 3, 4 (1903); Hannaher v. St. Paul, Minneapolis

& Man. Ry. Co., 5 Dakota 1, 16-17, 37 N.W. 717, 721-22 (1888). Thus, when the

State acquires the right to construct a highway, an inverse-condemnation action

may not be subsequently maintained “if the injury complained of was a natural and

probable result of the construction[.]” Hannaher, 5 Dakota at 16, 37 N.W. at 722

(emphasis added), cited with approval in White v. Chi., Milwaukee & St. Paul Ry.

Co., 1 S.D. 326, 331, 47 N.W. 146, 147 (1890).

[¶68.]       This Court’s predecessor decided a substantially similar issue in

Hannaher v. St. Paul, Minneapolis & Manitoba Railway Co., 5 Dakota 1, 37 N.W.

717 (1888). In that case, a railway company obtained the right to construct a

railroad across the land of several property owners. Id. at 8, 37 N.W. at 717-18.

The company placed the tracks on a two-foot-tall embankment it constructed using


                                          -39-
#27368

earth removed from an adjacent ditch. Id. The embankment and ditch altered the

existing natural watercourse, causing water to travel down the ditch and discharge

onto crop land that had not previously been flooded. Id. In holding there was no

right to compensation, the Supreme Court of the Territory of Dakota said:

             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 land-owners 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, 37 N.W. at 722 (emphasis added). For purposes of eminent domain, a

railroad is a highway. See S.D. Const. art. VI, § 13 (“The fee of land taken for

railroad tracks or other highways shall remain in such owners, subject to the use for

which it is taken.” (emphasis added)). Thus, the construction of a highway in the

present case is not materially distinguishable from the construction of a railroad in

Hannaher.

[¶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, 5 Dakota at 16, 37 N.W. at 722; see also JB Enters., Inc.,

2016 S.D. 89, ¶ 27 n.4, 889 N.W.2d at 138 n.4; Morris Family, LLC, 2014 S.D. 97,

¶ 20, 857 N.W.2d at 872; Kirby, 17 S.D. at 365-67, 97 N.W. at 4. Regardless of
                                        -40-
#27368

whether the State ever paid compensation for that taking, the right to such

compensation does not belong to Landowners. See Palazzolo v. Rhode Island,

533 U.S. 606, 628, 121 S. Ct. 2448, 2463, 150 L. Ed. 2d 592 (2001) (“[I]t is a general

rule of the law of eminent domain that any award goes to the owner at the time of

the taking, and that the right to compensation is not passed to a subsequent

purchaser.”), quoted in Johns v. Black Hills Power, Inc., 2006 S.D. 85, ¶ 12,

722 N.W.2d 554, 558. Thus, Landowners do not have an inverse-condemnation

claim. As originally pleaded in their complaint, Landowners’ claim is simply one of

negligence and trespass, which as the State points out, is barred by the doctrine of

sovereign immunity. See Rupert, 2013 S.D. 13, ¶ 43, 827 N.W.2d at 70-71.

Therefore, in the alternative, I would also reverse on this basis.

             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, 83 S.D. 198, 207, 157 N.W.2d 26, 31 (1968), the State contends it will have

“paid ‘for the right to permanently flood’ [Landowners’] properties.” Landowners

respond that “[t]he State’s request for a permanent drainage easement over

Landowner’s real estate is as bizarre as it is offensive” and that “a drainage

easement over the property was never pled, never argued, never described, never

valued, never noticed, and never even mentioned.” While the Court agrees “that the

State can obtain an easement in an inverse condemnation action when permanent

damages are awarded[,]” the Court nevertheless concludes that the State had the

burden of specifically defining such easement and that the State failed to do so.

                                         -41-
#27368

Supra ¶ 49. Even so, drawing a distinction between an “easement” and a “right” of

use, the Court goes on to hold that “the State . . . has a right to permanently flood

Landowners’ properties ‘to the extent of the flooding here involved.’” Supra ¶ 48

(quoting Heezen, 83 S.D. at 207, 157 N.W.2d at 31).

[¶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, 2016 S.D. 90, ¶ 12, 888 N.W.2d at 223-24; Hyde, 29 S.D.

at 229, 136 N.W. at 95. The distinction is critical in this case. If the basis for

Landowners’ claim to compensation is that the State appropriated Landowners’

property for the public use of holding overflow from the Spring Creek Tributary,

then the necessary implication of Landowners’ claim is that the State already has

such an easement. Thus, our choices would be either to (1) recognize the State’s

appropriation of Landowners’ property and grant compensation for it or (2) deny the

existence of the easement and, therefore, deny compensation.

[¶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, 2016 S.D. 90, ¶ 12, 888 N.W.2d at 223;

Searle v. City of Lead, 10 S.D. 312, 316, 73 N.W. 101, 103 (1897) (“[W]here . . . the


                                          -42-
#27368

estate [is] actually invaded by superinduced additions of water . . . so as effectually

to destroy or impair its usefulness, it is a ‘taking,’ within the meaning of the

constitution.”). It is equally well established that periodic flooding imposes a

permanent liability on land and is, therefore, a permanent taking. E.g., Ark. Game

& Fish Comm’n, 568 U.S. at 32, 133 S. Ct. at 519 (“[R]egularly recurring flooding

[gives] rise to a takings claim . . . .” (emphasis added)).21 So whether Landowners

realized it or not, their argument from the beginning has necessarily been that the

State permanently appropriated their land for the purpose of draining water—i.e.,

that the State took a drainage easement. There is nothing “bizarre” or “offensive”

about the State holding Landowners to their own assertions.22



21.   See also United States v. Cress, 243 U.S. 316, 329, 37 S. Ct. 380, 385,
      61 L. Ed. 746 (1917) (“[W]here . . . land is not constantly but only at intervals
      overflowed, the fee may be permitted to remain in the owner, subject to an
      easement in the [State] to overflow it with water . . . .”); Long v. City of
      Athens, 24 So. 3d 1110, 1118 (Ala. Civ. App. 2009); K & W Elec., Inc. v. State,
      712 N.W.2d 107, 116 (Iowa 2006); Spaeth v. City of Plymouth, 344 N.W.2d
      815, 822 (Minn. 1984); Allianz Global Risks U.S. Ins. Co. v. State, 13 A.3d
      256, 260 (N.H. 2010); Lea Co. v. N.C. Bd. of Transp., 304 S.E.2d 164, 175
      (N.C. 1983); State ex rel. Doner v. Zody, 958 N.E.2d 1235, 1248-49 (Ohio
      2011); State ex rel. Dep’t of Transp. v. Hoebel, 594 P.2d 1213, 1215 (Okla.
      1979) (“The majority rule in this country is that flooding, whether permanent
      or recurring, may constitute a [t]aking if the flooding is severe enough so as
      to effectively destroy or impair the land’s usefulness.” (emphasis added));
      Dunn v. City of Milwaukie, 328 P.3d 1261, 1271 n.13 (Or. 2014) (en banc);
      Colum. Venture, LLC v. Richland Cty., 776 S.E.2d 900, 911 (S.C. 2015);
      Bennett v. Tarrant Cty. Water Control & Imp’t Dist. No. 1, 894 S.W.2d 441,
      449 (Tex. App. 1995); Colman v. Utah State Land Bd., 795 P.2d 622, 627
      (Utah 1990).

22.   Landowners argue their pleadings do not claim the State “took” property.
      However, the label used by Landowners is not dispositive. 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, 2013 S.D. 13, ¶ 10, 827 N.W.2d at 61 (“[T]he viability of a takings
                                                                  (continued . . .)
                                        -43-
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[¶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, 83 S.D. at 200, 157 N.W.2d at 28.

The extra drainage increased the lake’s depth from about 3 feet to 12 feet, causing it

to overflow and flood the plaintiffs’ properties. Id. at 203, 157 N.W.2d at 29. The

circuit court concluded a taking had occurred, and it awarded both compensation

and an injunction in favor of the property owners. Id. at 200, 204, 157 N.W.2d

at 28, 30. On appeal, we affirmed the award of compensation but reversed the

injunctive relief. Id. at 207, 157 N.W.2d at 31-32. We noted:

               In trying and deciding [the complaints,] the measure of damages
               applied by the court was the difference in market value of these

(. . . continued)
         claim is dependent upon ‘situation-specific factual inquiries.’” (quoting Ark.
         Game & Fish Comm’n, 568 U.S. at 32, 133 S. Ct. at 518)). By arguing the
         State subjected their properties to recurring flooding, Landowners
         necessarily argued the State permanently burdened their properties, thereby
         appropriating a property interest—i.e., that the State took property.
         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, 447 U.S. 255,
         258 n.2, 100 S. Ct. 2138, 2140 n.2, 65 L. Ed. 2d 106 (1980). This Court has
         expressly recognized that an uncompensated appropriation of property is
         nevertheless an appropriation of property. See Johns, 2006 S.D. 85, ¶ 12,
         722 N.W.2d at 558 (concluding land upon which telephone pole and guy wires
         were placed had been appropriated without prior compensation and denying
         compensation to subsequent purchaser).

                                          -44-
#27368

             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, 157 N.W.2d at 31 (emphasis added); see also 9 Rohan & Reskin, supra

¶ 61, § G34.03[3][b] (“[A] landowner cannot obtain injunctive relief and get damages

for a permanent taking.”). Notably, we did not require a detailed, metes-and-

bounds description of the resulting easement. We simply defined the easement in

terms of what the property owners had proven—i.e., “to the extent of the flooding

here involved.” Heezen, 83 S.D. at 207, 157 N.W.2d at 31.

[¶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
                                        -45-
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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 . . . provide[s] 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 83 S.D. at 206-07,

157 N.W.2d at 31. Thus, there is no need for the State to introduce evidence

establishing a taking that it claims did not occur. See Rupert, 2013 S.D. 13, ¶ 37,


                                           -46-
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827 N.W.2d at 68 (“In condemnation cases, the governmental entity essentially

admits that a taking will occur because it institutes the formal condemnation

proceedings to do so. In contrast, in inverse condemnation cases, the governmental

entity may dispute whether or not a taking or damaging of private property has

even occurred.”). If the easement at issue has not been properly identified, then it is

the property owner who has failed to prove an essential element of the claim.

[¶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.23 As noted above, this

Court did not require a particular description for the easement recognized in


23.      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, 741 S.W.2d 16, 18-19 (Mo. 1987) (en banc)). Likewise, the
         secondary authority cited by the Court cites to this same, single case.
         Contrary to the Court’s suggestion, the Missouri court did not set aside
         elementary condemnation principles in favor of issue preclusion. As this
         Court did in Heezen, Owen recognized that the condemning authority in that
         case “appropriated the permanent right, which is in the nature of an
         easement, to invade landowners’ property.” Owen, 741 S.W.2d at 18
         (emphasis added). Only then did the court apply claim preclusion to bar a
         subsequent action for additional elements of compensation that could have
         been claimed in the initial condemnation proceedings. See id. at 18-19.

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Heezen. See 83 S.D. at 207, 157 N.W.2d at 31. This is because in an inverse-

condemnation claim, the particulars of the right acquired are found in the facts of

the case. As in Heezen, Landowners in this case presented documentary and

testimonial evidence establishing the current drainage characteristics of

Highway 11, the extent of flooding that occurred, and the expected frequency of

such flooding. Determining whether future flooding is within the scope of the right

acquired by the State in this case is simply a matter of comparing the extent or

frequency of the future flooding to that involved in this case and determining

whether the State caused such change. The Court’s claim-preclusion approach

requires essentially the same analysis.

[¶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 not solve

the Court’s analytical problem of concluding the State took but does not 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.


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[¶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 tortfeasors, 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,24 but

Landowners settled with the City prior to trial. Landowners argue principles of

contribution and indemnification only apply in tort actions, not eminent domain.

Landowners also argue the circuit court correctly concluded the State failed to prove



24.      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.
               ....
               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.
               ....
               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, 397 N.W.2d 464, 468 (S.D. 1986)
         (“[I]f a plaintiff sues defendants as joint tort-feasors and settles with them,
         they are joint tort-feasors.”).


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fault on the part of the City. The Court agrees with Landowners, holding that “the

State was not entitled to file a cross-claim against the City seeking contribution

under the Joint Tortfeasor’s Act.” Supra ¶ 40.25

[¶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, 2013 S.D. 13, ¶ 27, 827 N.W.2d at 66 (emphasis added) (quoting Lawrence

Cty. v. Miller, 2010 S.D. 60, ¶ 21, 786 N.W.2d 360, 369). As the United States

Supreme Court has explained:

               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 unjust to the public.

Bauman v. Ross, 167 U.S. 548, 574, 17 S. Ct. 966, 976, 42 L. Ed. 270 (1897)

(emphasis added). By refusing to acknowledge that the compensation Landowners


25.      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, 29 S.D. at 231, 136 N.W. at 96
         (“[T]he question of negligence [is] entirely foreign in the law of eminent
         domain . . . .”).

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received from the City reduced the State’s total liability, the Court in essence holds

that Landowners are entitled to receive more than the value of what they have been

deprived of. The State’s invitation to apply the principles embodied in the Joint

Tortfeasors Act, however, preserves our common-law rules of compensation.

[¶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

undercompensating them. Bauman, 167 U.S. at 574, 17 S. Ct. at 976; Rupert,

2013 S.D. 13, ¶ 27, 827 N.W.2d at 66. Therefore, a condemnor’s right to an offset

requires no more proof than that a joint condemnor partially compensated the

person from which property was taken. It is undisputed that Landowners settled

with the City. At a minimum, then, the State should have been permitted to

present evidence to the jury establishing the amount of that settlement because the

State’s total liability is necessarily reduced by the same amount.



                                     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

their 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


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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 court’s dismissal of the State’s cross-claim resulted in

overcompensating Landowners. Therefore, I would reverse.



BARNETT, Circuit Judge (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.




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