#27354-aff in pt & rev in pt-DG
2016 S.D. 50

                           IN THE SUPREME COURT
                                   OF THE
                          STATE OF SOUTH DAKOTA


                                    ****


MICHAEL A. MAGNER and
DENISE W. WILLIAMS,                        Plaintiffs and Appellees,

v.

GLENN J. BRINKMAN and
SUSAN BRINKMAN d/b/a
BRINKMAN ARABIAN STABLES,
jointly and severally,                     Defendants and Appellants.


                                    ****

                   APPEAL FROM THE CIRCUIT COURT OF
                      THE SIXTH JUDICIAL CIRCUIT
                     HUGHES COUNTY, SOUTH DAKOTA

                                    ****

                       THE HONORABLE MARK BARNETT
                                  Judge

                                    ****


BRAD SCHREIBER of
The Schreiber Law Firm, Prof. LLC
Pierre, South Dakota                       Attorneys for appellees.


JAMES E. CARLON
Pierre, South Dakota                       Attorney for appellants.


                                    ****

                                           CONSIDERED ON BRIEFS
                                           ON FEBRUARY 16, 2016
                                           OPINION FILED 07/13/16
#27354

GILBERTSON, Chief Justice

[¶1.]        Michael A. Magner and Denise W. Williams (Plaintiffs) sued Glenn J.

and Susan Brinkman (Defendants) for allegedly causing an increased amount of

water drainage on Plaintiffs’ land by altering the natural flow of water across

Defendants’ land. Defendants appeal the circuit court’s judgment entered after a

jury trial, arguing that they were entitled to judgment as a matter of law because

Plaintiffs failed to offer proof that Defendants caused the increase in drainage.

Defendants also argue that the court abused its discretion in granting Plaintiffs a

permanent injunction ordering Defendants to pay additional money for repairs and

preventive landscaping. We affirm the court’s denial of Defendants’ requests for

judgment as a matter of law. We reverse the court’s grant of injunction and

remand.

                          Facts and Procedural History

[¶2.]        Defendants purchased a 160-acre tract northeast of Pierre in 2004.

Plaintiffs purchased their home, which is located on a 40-acre tract bordering

Defendants’ property, and moved in on January 4, 2007. The properties are

coterminous on their western borders, where they are bounded by a county road

that falls on a section line. There are three areas between the two properties that

naturally pool water: one in the northeastern area of Defendants’ property; one at

the northwestern corner of Defendants’ property; and a pond near the east–west

center of Plaintiffs’ property, near its northern border with Defendants’ property.

The area extending northwest from Plaintiffs’ pond to the southwestern corner of

Defendants’ property is a designated wetland. Plaintiffs’ property is lower in


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#27354

elevation than Defendants’, and water naturally flows from Defendants’ property

onto Plaintiffs’ property.

[¶3.]         This lawsuit centers on the drainage of water from Defendants’

property onto Plaintiffs’ property. In particular, the trial focused on three

occurrences of drainage that led to the current controversy. First, on June 12, 2007,

the two properties received rainfall in excess of three inches. As a result of this

rainfall, a significant amount of water pooled near Defendants’ barn and corrals.

However, water did not accumulate anywhere on Plaintiffs’ property, and at that

point, Plaintiffs’ pond was empty. Shortly thereafter, Defendants dug a trench

leading from the pool to the border with Plaintiffs’ property in an attempt to divert

this water onto Plaintiffs’ land. Although the parties dispute the reason for and

timing of this trench, 1 Plaintiffs initially permitted Defendants to drain water into

Plaintiffs’ pond but later withdrew that consent. Defendants complied by filling in

the end of the trench with dirt.

[¶4.]         On June 3, 2008, the same area again received rainfall in excess of

three inches. Initially, Plaintiffs’ pond was damp but did not have any standing

water. Defendants’ property, on the other hand, had standing water similar to that

in June 2007. Defendants dug another trench to again divert water to the southern

slope of their property, which in turn flowed onto Plaintiffs’ property. This

diversion contributed to filling Plaintiffs’ pond and flooding the northwest portion of



1.      Plaintiffs claim Defendants dug the trench and then asked for permission to
        drain the water that had pooled. Defendants claim they dug the trench at
        Plaintiffs’ request because Plaintiffs wanted to fill the pond and stock it with
        fish.

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#27354

their property. Plaintiffs sent a certified letter to Defendants informing them that

Plaintiffs were aware of the second trench. Plaintiffs also contacted the Natural

Resources Conservation Service (NRCS), an agency of the United States

Department of Agriculture. Lowell Noeske, a district conservationist with the

NRCS, performed an on-site review on June 16. In a report dated June 18, he

stated to Plaintiffs: “There was some disturbed earth where you indicated a ditch

had been excavated. It is my determination that the shape of the land on the

ground today is near natural condition and that no alteration currently exists on

the wet area in question.”

[¶5.]        The third drainage event occurred in 2010. The county road on the

western border of the parties’ properties had fallen into disrepair. The road had

numerous low points that collected water, including the area at the northwestern

corner of Defendants’ property. Because the county lacked the funds to repair the

road, Defendants sought to effect the repair themselves. Upon discovering that

rebuilding the road to county specifications would be cost prohibitive, Defendants

instead decided to build a private road just inside the western boundary of their

property, running parallel to the county road. Defendants installed a culvert in the

southern half of the private road that permits water to cross under and drain onto

the southern slope of Defendants’ property, which is part of the shared wetland area

that includes Plaintiffs’ pond. After Defendants built their private road, additional

rainfall and melting snow caused a significant amount of water to accumulate in the

northwestern portion of Plaintiffs’ property.




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#27354

[¶6.]        As a result of these drainage events, Plaintiffs were unable to pasture

their intended number of cattle for several years. They filed suit on November 22,

2011, alleging public and private nuisance. Plaintiffs sought $50,000 in damages

for lost business income, $5,000 in damages to remove accumulated silt and dirt

from their pond, and a permanent injunction requiring Defendants to reverse any

alterations they made to the drainage pattern. A trial was held on November 14

and 15, 2013. At the close of Plaintiffs’ case, Defendants filed a motion requesting

judgment as a matter of law, and the circuit court denied the motion. The jury

awarded Plaintiffs $9,950 in damages, and Defendants filed a motion renewing

their request for judgment as a matter of law. The court denied the motion, and

Defendants voluntarily satisfied the judgment. The jury was not provided special

interrogatories. The court held a hearing on Plaintiffs’ request for injunctive relief

on August 4, 2014. However, because Plaintiffs failed to provide evidence regarding

the cost that Defendants would incur in moving their private road, the court

continued the hearing until December 17.

[¶7.]        At the subsequent hearing, Plaintiffs abandoned their request for an

injunction ordering Defendants to move their road and instead asked the court to

order Defendants to pay for preventive and corrective landscaping on Plaintiffs’

property. The plan proposed by Plaintiffs involved removing a substantial amount

of dirt from their pond (both deepening and widening it) and using the dirt to raise

the elevation of their property’s northwestern area in order to divert the water

entering their property to the improved-capacity pond, preventing the water from

pooling in the wetland area. Defendants presented testimony from Scott


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Schweitzer, an engineer and hydrologist, who opined that Defendants had not made

any alterations to their property that caused any change in the flow pattern or

volume of water draining from Defendants’ to Plaintiffs’ property. Even so, the

circuit court reasoned that the jury’s verdict in favor of Plaintiffs established that

Defendants had altered their property in some fashion that caused increased

drainage. The court granted the injunction and ordered Defendants to pay an

additional $28,936 to Plaintiffs.

[¶8.]          Defendants appeal, raising the following issues:

               1.    Whether the circuit court erred by denying Defendants’
                     requests for judgment as a matter of law. 2

               2.    Whether the circuit court erred in granting the injunction.

                               Analysis and Decision

[¶9.]          1.    Whether the circuit court erred by denying
                     Defendants’ requests for judgment as a matter of
                     law.

[¶10.]         Defendants argue that Plaintiffs “failed to produce any evidence on an

essential element of a water diversion claim” and that Defendants were therefore

entitled to judgment as a matter of law. Defendants contend “[t]here is no

competent evidence offered by [Plaintiffs] to indicate that the water on [their]

property is a result of a diversion implemented by [Defendants].” Additionally,

Defendants point to the expert testimony of Noeske and Schweitzer, who both

opined that there were no man-made alterations affecting the drainage from


2.       Plaintiffs argue in their reply brief that this issue is moot because
         Defendants voluntarily satisfied the judgment. Because we affirm on this
         first issue, however, it is unnecessary to address Plaintiffs’ mootness
         argument.

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#27354

Defendants’ property. Thus, Defendants conclude that Plaintiffs have “produced no

evidence and [have] not identified any device or alteration on [Defendants’] property

that is altering the natural drainage or water flow.”

[¶11.]         This case provides an opportunity to reexamine the applicable

standard of review on this issue. Many of our decisions state that we apply the

abuse-of-discretion standard of review to a circuit court’s grant or denial of a motion

for judgment as a matter of law. E.g., Casper Lodging, LLC v. Akers, 2015 S.D. 80,

¶ 29, 871 N.W.2d 477, 489; Bertelsen v. Allstate Ins. Co., 2013 S.D. 44, ¶ 16,

833 N.W.2d 545, 554; Christenson v. Bergeson, 2004 S.D. 113, ¶ 10, 688 N.W.2d 421,

425. However, the majority of other courts have rejected the abuse-of-discretion

standard in cases such as this. 9B Arthur R. Miller, Federal Practice & Procedure

§ 2536 (3d ed.), Westlaw (database updated April 2016). The United States Courts

of Appeals unanimously apply the de novo standard. 3 Likewise, there is widespread

agreement among the States’ respective high courts that a lower court’s decision to




3.       See Allstate Ins. Co. v. Plambeck, 802 F.3d 665, 673 (5th Cir. 2015); Cir.
         Check Inc. v. QXQ Inc., 795 F.3d 1331, 1334 (Fed. Cir. 2015); Radtke v.
         Lifecare Mgmt. Partners, 795 F.3d 159, 163 (D.C. Cir. 2015); Rhinehimer v.
         U.S. Bancorp Invs., Inc., 787 F.3d 797, 804 (6th Cir. 2015); Glickenhaus &
         Co. v. Household Int’l, Inc., 787 F.3d 408, 414 (7th Cir. 2015); U.S. S.E.C. v.
         Big Apple Consulting USA, Inc., 783 F.3d 786, 813 (11th Cir. 2015); Newton
         v. City of N.Y., 779 F.3d 140, 146 (2d Cir. 2015); T G Plastics Trading Co.,
         Inc. v. Toray Plastics (Am.), Inc., 775 F.3d 31, 37 (1st Cir. 2014); Lee ex rel.
         Lee v. Borders, 764 F.3d 966, 971 (8th Cir. 2014); Durham v. Jones, 737 F.3d
         291, 298 (4th Cir. 2013); Hagen v. City of Eugene, 736 F.3d 1251, 1256 (9th
         Cir. 2013); Elm Ridge Expl. Co., LLC v. Engle, 721 F.3d 1199, 1216 (10th Cir.
         2013); Buskirk v. Apollo Metals, 307 F.3d 160, 166 (3d Cir. 2002).

                                            -6-
#27354

grant or deny judgment as a matter of law should be reviewed de novo. 4 The reason

for this is that “[w]hether judgment as a matter of law should be granted is a

question of law[,]” id.; accord Thormahlen v. Foos, 83 S.D. 558, 562, 163 N.W.2d

350, 352 (1968) (“A motion for directed verdict or judgment notwithstanding the

verdict presents a question of law as to whether there is any evidence, if believed,

sustaining the verdict against the moving party . . . .”), 5 which is reviewed de novo,

Pitt-Hart v. Sanford USD Med. Ctr., 2016 S.D. 33, ¶ 7, 878 N.W.2d 406, 409.

[¶12.]         Furthermore, although numerous opinions of this Court prescribe the

abuse-of-discretion standard, it appears that these cases largely—if not entirely—


4.       See Jones Food Co., Inc. v. Shipman, 981 So. 2d 355, 360-61 (Ala. 2006); City
         of Hooper Bay v. Bunyan, 359 P.3d 972, 977 (Alaska 2015); Glazer v. State,
         347 P.3d 1141, 1148 (Ariz. 2015); Whittaker v. Houston, 888 A.2d 219, 224
         (Del. 2005); Christensen v. Bowen, 140 So. 3d 498, 501 (Fla. 2014); Ray v.
         Kapiolani Med. Specialists, 259 P.3d 569, 577 (Haw. 2011); Griff, Inc. v.
         Curry Bean Co., Inc., 63 P.3d 441, 445 (Idaho 2003); Krywin v. Chi. Transit
         Auth., 938 N.E.2d 440, 446 (Ill. 2010); Siruta v. Siruta, 348 P.3d 549, 558
         (Kan. 2015); Hall v. Folger Coffee Co., 874 So. 2d 90, 98-99 (La. 2004); State v.
         Price-Rite Fuel, Inc., 24 A.3d 81, 85 (Me. 2011); Aroma Wines & Equip., Inc.
         v. Columbian Distrib. Servs., Inc., 871 N.W.2d 136, 140 (Mich. 2015); Isaac v.
         Vy Thanh Ho, 825 N.W.2d 379, 383 (Minn. 2013); Ill. Cent. R.R. Co. v. Brent,
         133 So. 3d 760, 767 (Miss. 2013); Ellison v. Fry, 437 S.W.3d 762, 768 (Mo.
         2014) (en banc); Barile v. Butte High Sch., 309 P.3d 1009, 1012 (Mont. 2013);
         FGA, Inc. v. Giglio, 278 P.3d 490, 500 (Nev. 2012); McNeill v. Burlington Res.
         Oil & Gas Co., 182 P.3d 121, 130 (N.M. 2008); Minto Grain, LLC v. Tibert,
         776 N.W.2d 549, 554-55 (N.D. 2009); White v. Leimbach, 959 N.E.2d 1033,
         1038 (Ohio 2011); Badillo v. Mid Century Ins. Co., 121 P.3d 1080, 1092 (Okla.
         2005); O’Connell v. Walmsley, 93 A.3d 60, 65-66 (R.I. 2014); Lake v. Memphis
         Landsmen, LLC, 405 S.W.3d 47, 67 (Tenn. 2013); Vincent v. DeVries, 72 A.3d
         886, 890 (Vt. 2013); Gomez v. Sauerwein, 331 P.3d 19, 22 (Wash. 2014) (en
         banc); Princeton Ins. Agency, Inc. v. Erie Ins. Co., 690 S.E.2d 587, 592 (W. Va.
         2009); Witherspoon v. Teton Laser Ctr., LLC, 149 P.3d 715, 723 (Wyo. 2007).

5.       In 2006, the phrases motion for directed verdict and motion for judgment
         notwithstanding the verdict were changed to motion for judgment as a matter
         of law and renewed motion for judgment as a matter of law, respectively.
         2006 S.D. Sess. Laws ch. 318 (Sup. Ct. Rule 06-44, -45).

                                            -7-
#27354

derive from our decision in Lytle v. Morgan, 270 N.W.2d 359 (S.D. 1978) (per

curiam). 6 One of the issues raised in that case was whether the circuit court erred

by denying the plaintiff’s motion for judgment as a matter of law. Id. at 360. In

response to this issue, we said: “[I]t is well established that [circuit] court rulings

and decisions are presumed to be correct and this [C]ourt will not seek reasons to

reverse.” Id. (citing Shaffer v. Honeywell, Inc., 249 N.W.2d 251 (S.D. 1976),

overruled on other grounds by First Premier Bank v. Kolcraft Enters., Inc., 2004 S.D.

92, 686 N.W.2d 430; and Custer Cty. Bd. of Educ. v. State Comm’n on Elementary &

Secondary Educ., 86 S.D. 215, 193 N.W.2d 586 (1972)). However, the authorities

cited in Lytle do not support this statement. Although in Shaffer we did say that

“[t]he rulings of the trial court are presumptively correct[,]” this statement was

made in regard to the circuit court’s factual findings and evidentiary rulings.

249 N.W.2d at 257-58. Similarly, our statement in Custer County Board of

Education that “[t]he rulings, decisions and judgments of a trial court are

presumptively correct” also referred to the deference afforded to a circuit court’s

factual findings. 86 S.D. at 220-21, 193 N.W.2d at 589. Thus, Lytle’s application of

the abuse-of-discretion standard—as well as that of every other case that can be

traced back to Lytle—is based on a misreading of two inapplicable cases. 7



6.    For example, it appears that every case decided in the last five years
      involving the review of a circuit court’s decision on a motion for judgment as a
      matter of law can be traced back to Lytle.

7.    In practice, even those cases prescribing the abuse-of-discretion standard—
      including Lytle—seem to conduct a de novo inquiry into whether the
      evidence, when viewed in a light most favorable to the nonmoving party, is
      sufficient to permit reasonable people to disagree on the merits. See, e.g.,
                                                           (continued . . .)
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#27354

[¶13.]         Finally, several concepts closely related to a motion for judgment as a

matter of law are reviewed de novo. For example, the central question in both a

motion for summary judgment and a motion for dismissal is whether a party is

“entitled to judgment as a matter of law[.]” Kustom Cycles, Inc. v. Bowyer,

2014 S.D. 87, ¶ 8, 857 N.W.2d 401, 405. Our review of a court’s decision regarding

either of these motions is conducted de novo. Id. Furthermore, “‘[t]he denial of a

motion for judgment of acquittal presents a question of law’ that we review de

novo.” State v. Brim, 2010 S.D. 74, ¶ 6, 789 N.W.2d 80, 83 (quoting State v. Klaudt,

2009 S.D. 71, ¶ 14, 772 N.W.2d 117, 122). Yet, there is no material distinction

between a motion for judgment of acquittal (applicable in criminal cases) and a

motion for judgment as a matter of law (applicable in civil cases). 8 Therefore, in

order to maintain consistency among these related concepts, and in light of both the

________________________
(. . . continued)
         Casper Lodging, LLC, 2015 S.D. 80, ¶¶ 29-32, 871 N.W.2d at 489-90 (“From
         our review of the record, there is sufficient evidence to support the jury’s
         verdict that Akers breached the parties’ contract.”); Bertelsen, 2013 S.D. 44,
         ¶¶ 16-20, 833 N.W.2d at 554-55 (“The evidence was sufficient to support the
         bad faith verdict.”); Lytle, 270 N.W.2d at 361 (“We have examined the record
         in the light most favorable to defendant and we find that there was
         substantial evidence upon which reasonable minds could differ.” (emphasis
         added)).

8.       Compare SDCL 15-6-50(a) (“If during a trial by jury a party has been fully
         heard on an issue and there is no legally sufficient evidentiary basis for a
         reasonable jury to find for that party on that issue, the court may determine
         the issue against that party and may grant a motion for judgment as a
         matter of law against that party with respect to a claim or defense that
         cannot under the controlling law be maintained or defeated without a
         favorable finding on that issue.”), with SDCL 23A-23-1 (Rule 29(a)) (“A court
         on motion of a defendant or on its own motion shall order the entry of
         judgment of acquittal of one or more offenses charged in an indictment or
         information after the evidence on either side is closed, if the evidence is
         insufficient to sustain a conviction of the offense or offenses.”).

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dearth of authority supporting application of the abuse-of-discretion standard and

the wealth of authority supporting application of the de novo standard, we hold that

a circuit court’s decision to grant or deny a motion for judgment as a matter of law

must be reviewed de novo on appeal.

[¶14.]       In light of the foregoing, we review de novo the question whether

“there is no legally sufficient evidentiary basis for a reasonable jury to find” that

Defendants caused water to invade Plaintiffs’ property. SDCL 15-6-50(a). We apply

“the same standard that the trial court was required to apply initially.” Minto

Grain, LLC v. Tibert, 776 N.W.2d 549, 555 (N.D. 2009) (quoting Okken v. Okken,

325 N.W.2d 264, 267 (N.D. 1982)); Miller, supra ¶ 11, § 2536. “In reviewing a

renewed motion for judgment as a matter of law after the jury verdict, the evidence

is reviewed ‘in a light most favorable to the verdict or to the nonmoving party.’”

Alvine Family Ltd. P’ship v. Hagemann, 2010 S.D. 28, ¶ 18, 780 N.W.2d 507, 512

(quoting Harmon v. Washburn, 2008 S.D. 42, ¶ 9, 751 N.W.2d 297, 300). “[W]ithout

weighing the evidence, the court must [then] decide if there is evidence [that] . . .

support[s] a verdict.” Id. (quoting Harmon, 2008 S.D. 42, ¶ 9, 751 N.W.2d at 300).

“If sufficient evidence exists so that reasonable minds could differ, judgment as a

matter of law is not appropriate.” Bertelsen, 2013 S.D. 44, ¶ 16, 833 N.W.2d at 554

(quoting Roth v. Farner–Bocken Co., 2003 S.D. 80, ¶ 8, 667 N.W.2d 651, 659).

[¶15.]       Defendants’ arguments on this issue amount to little more than an

attempt to relitigate the trial. The owner of a dominant estate is permitted to drain

water onto a servient estate “by means of a natural water course or established

water course[.]” SDCL 46A-10A-20(4). Plaintiffs themselves provided testimony


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sufficient for the jury to conclude Defendants had altered their land in such a way

as to divert a greater-than-normal volume of water drainage onto Plaintiffs’

property through a newly dug water course. Plaintiffs testified that they noticed

significant water pooling on Defendants’ property after both the June 2008 and

June 2009 rain events. Plaintiffs explained that their property had no standing

water after the June 2008 event, that their property initially had no standing water

after the June 2009 event, that they witnessed water flowing down a trench

running from Defendants’ corrals toward Plaintiffs’ property after the June 2009

event, and that their property subsequently flooded. Plaintiffs further testified that

their property has suffered frequent flooding since Defendants installed their

private drive. Finally, Plaintiffs also testified that instead of water pooling at the

northwest corner of Defendants’ property, water now runs south along the western

side of the private drive, crosses underneath the drive through the culvert, runs

down the southern slope of Defendants’ property, and pools in the northwest corner

of Plaintiffs’ property.

[¶16.]        Plaintiffs’ testimony was sufficient to permit the jury to conclude

Defendants caused the water invasion. Although Defendants’ experts may have

concluded that there was no evidence that the flooding resulted from Defendants’

actions, we do not weigh the evidence in determining whether judgment as a matter

of law is appropriate. Alvine Family Ltd. P’ship, 2010 S.D. 28, ¶ 18, 780 N.W.2d

at 512. Even if we did, “[t]his state is not a trial-by-expert jurisdiction.” Bridge v.

Karl’s, Inc., 538 N.W.2d 521, 525 (S.D. 1995). “Fact finders are free to reasonably

accept or reject all, part, or none of an expert’s opinion.” O’Neill v. O’Neill,


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2016 S.D. 15, ¶ 17, 876 N.W.2d 486, 494 (quoting Sauer v. Tiffany Laundry & Dry

Cleaners, 2001 S.D. 24, ¶ 14, 622 N.W.2d 741, 745). As the factfinder in this case, it

was the jury’s prerogative to believe Plaintiffs’ testimony and give it greater weight

than Defendants’ evidence. Therefore, Defendants were not entitled to judgment as

a matter of law, and the circuit court correctly denied Defendants’ requests.

[¶17.]         2.     Whether the circuit court erred in granting the
                      injunction.

[¶18.]         The injunction issued by the circuit court consists of two parts. First,

the court ordered Defendants to pay “$28,936 for costs, expenses, and taxes

associated with . . . improvements or alterations to the Plaintiffs’ property for the

specific purpose to protect Plaintiffs’ property from water runoff from the

Defendants’ property[.]” Second, the court also prohibited Defendants from making

future alterations to their property. 9 We conclude that the circuit court was not

authorized to issue the first part of the injunction and that the circuit court abused

its discretion in issuing the second part of the injunction. We also take this

opportunity to clarify the appropriate standard of review for the grant or denial of

an injunction.

[¶19.]         We have often said that “[g]ranting or denying an injunction rests in

the sound discretion of the trial court.” Hendrickson v. Wagners, Inc., 1999 S.D. 74,

¶ 14, 598 N.W.2d 507, 510 (quoting Knodel v. Kassel Twp., 1998 S.D. 73, ¶ 6,


9.       The full text of this part of the injunction reads: “ORDERED that Defendants
         are prohibited from future alteration of this Plaintiffs’ property that would
         adversely or unreasonably affect the natural flow of water, either in quantity
         or its direction of flow onto the Plaintiffs’ property . . . .” (Emphasis added.)
         However, Plaintiffs’ argument is that Defendants altered Defendants’
         property, not that Defendants altered Plaintiffs’ property.

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581 N.W.2d 504, 506). However, before reviewing whether the court abused its

discretion in granting an injunction, we must first determine whether an injunction

was statutorily authorized. A permanent injunction is authorized only under

limited circumstances:

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

SDCL 21-8-14. “The foundation of [this statute] rests in the probability of

irreparable injury, the inadequacy of pecuniary compensation, and the prevention of

a multiplicity of suits; and, where facts are not shown to bring the case within these

conditions, the relief will be refused.” Beatty v. Smith, 14 S.D. 24, 32, 84 N.W. 208,

211 (1900) (quoting James L. High, Law of Injunctions § 697). Whether the facts of

a particular case meet these statutory prerequisites is a question of law. See

Faircloth v. Raven Indus., Inc., 2000 S.D. 158, ¶ 4, 620 N.W.2d 198, 200. Therefore,

the question whether an injunction is statutorily authorized is reviewed de novo,

and the court’s subsequent decision to grant or deny the injunction is reviewed for

an abuse of discretion. Hendrickson, 1999 S.D. 74, ¶ 14, 598 N.W.2d at 510. 10


10.   If SDCL 21-8-14 authorizes an injunction, the court’s subsequent exercise of
      discretion is guided by several factors. For example, “the injury complained
      of [must] be irreparable[,]” and “it is essential that [the] plaintiff prove the
                                                              (continued . . .)
                                          -13-
#27354

[¶20.]        The threshold question, then, is whether SDCL 21-8-14 authorized an

injunction. In its conclusions of law, the court concluded both that pecuniary

compensation would not afford Plaintiffs adequate relief (SDCL 21-8-14(1)) and that

an injunction was necessary to avoid a multiplicity of suits (SDCL 21-8-14(3)). The

court said:

              I find that absent an injunction, there would be irreparable
              harm that is not easily measured in damages and not easily—if
              you’ve got to sue every time to get your damages, that, to me,
              suggests irreparable harm if the injunction is not granted.
              ....
              [T]here would be irreparable—and by that I mean repetitive
              harm . . . .

However, both of these conclusions are defeated by Plaintiffs’ evidence, and we

conclude that SDCL 21-8-14 did not authorize the injunction in this case.

[¶21.]        First, the very nature of Plaintiffs’ modified request for injunction

undermines the conclusion that the harm was irreparable and not easily measured

in damages. “Harm is irreparable ‘where it cannot be readily, adequately, and

completely compensated with money.’” Strong v. Atlas Hydraulics, Inc., 2014 S.D.

69, ¶ 17, 855 N.W.2d 133, 140 (quoting Knodel, 1998 S.D. 73, ¶ 13, 581 N.W.2d

at 509). Yet, the first part of the injunction simply ordered Defendants to pay

money to Plaintiffs in the amount of “$28,936 for costs, expenses, and taxes

________________________
(. . . continued)
         causative link between the actions of the defendant and the injury
         complained of.” Foley v. City of Yankton, 89 S.D. 160, 165, 230 N.W.2d 476,
         479 (1975). An injunction should be denied “where the expense or hardship
         to be suffered by the defendant is disproportionate to the small benefit to be
         gained by the injured party” unless “the actions of the defendant were taken
         willfully and with full knowledge of plaintiff’s rights and the [consequences]
         which might ensue.” Id. at 166, 230 N.W.2d at 479.

                                          -14-
#27354

associated with . . . improvements or alterations to the Plaintiffs’ property for the

specific purpose to protect Plaintiffs’ property from water runoff from the

Defendants’ property[.]” Because prospective damages may be measured by

determining the reasonable and necessary cost of preventing future injury, City of

Jackson v. Keane, 502 So. 2d 1185, 1188 (Miss. 1987); Restatement (Second) of Torts

§ 930(3)(b) (Am. Law Inst. 1979), Plaintiffs could have simply sought this amount as

future damages at the same time they sought the $55,000 for past damages,

Peacock v. Sundre Twp., 372 N.W.2d 877, 879 (N.D. 1985) (“When . . . an election is

made [to seek a single recovery for all past and future damage], all damages for past

and future injury to the property may be aggregated and recovered at once, and one

such recovery is a bar to all subsequent actions for damages.”); Restatement

(Second) of Torts § 930. In reality, then, the first part of the injunction is no more

than a simple money judgment for future damages imposed on Defendants by

substituting the court’s coercive power for a jury verdict. 11 Therefore, we disagree

with the circuit court that pecuniary compensation would not have afforded

Plaintiffs adequate relief in this case.




11.   Courts generally do not “compel money payments by injunctive orders except
      in very special cases. Instead, a judgment is rendered for most ordinary
      money judgments.” Dan B. Dobbs, Law of Remedies § 2.6(1), p. 103-04 (2d ed.
      1993). This general rule is true because “[a]n essential element to equitable
      relief is the lack of an adequate remedy at law.” Knodel, 1998 S.D. 73, ¶ 8,
      581 N.W.2d at 507. If a plaintiff’s grievance can be adequately remedied by
      receipt of a judge-ordered sum of money, then a jury-awarded sum of money
      is also likely a sufficient remedy. Consequently, while “[t]he law–equity
      distinction does not prevent injunctions to require money payments, . . . good
      sense or caution will often do so.” Dobbs, supra, § 2.6(1), p. 104.

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[¶22.]         Next, the court concluded that the injunction was necessary to prevent

multiple lawsuits. We have said that “[a] trip to the courthouse to settle a legal

dispute should be dispositive and not an annual event.” Hendrickson, 1999 S.D. 74,

¶ 24, 598 N.W.2d at 512. Thus, “a trespass of a continuing nature, whose constant

recurrence renders the remedy at law inadequate, unless by a multiplicity of suits,

affords sufficient ground for relief by injunction.” Beatty, 14 S.D. at 32, 84 N.W.

at 211 (quoting High, supra, § 697). However, the question is not whether an

injunction can prevent multiple judicial proceedings; the question is whether the

injunction is necessary to do so. SDCL 21-8-14(3). As discussed in the preceding

paragraph, the facts of this case establish that Plaintiffs could have avoided future

litigation by seeking compensation for past and future damages in one action. The

fact that they chose not to do so does not render an injunction necessary to prevent

multiple suits. Therefore, because none of the four circumstances listed in

SDCL 21-8-14 have been met, 12 an injunction ordering Defendants to pay $28,936

to Plaintiffs was not statutorily authorized in this case.

[¶23.]         The second half of the injunction is also problematic. It states, in part:

“Defendants are prohibited from future alteration of this Plaintiffs’ [sic]

property . . . .” (Emphasis added.) By its express terms, then, the second half of the

injunction is unrelated to any existing alteration alleged by Plaintiffs. However, the



12.      Plaintiffs asserted that the cost of preventing future damage was $28,936,
         and Defendants did not dispute that amount. Therefore, this is not a case
         “[w]here it would be extremely difficult to ascertain the amount of
         compensation which would afford adequate relief[.]” SDCL 21-8-14(2).
         Because this case does not involve an obligation arising from a trust,
         SDCL 21-8-14(4) is also inapplicable.

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circuit court’s findings of fact and conclusions of law do not address the likelihood of

future alterations to Defendants’ (or Plaintiffs’) property (they only address future

damage resulting from existing alterations). Thus, it does not appear that the

circuit court considered the question whether SDCL 21-8-14 authorized the second

half of the injunction. Therefore, we remand to the circuit court to consider this

threshold question.

[¶24.]       If on remand the circuit court concludes that SDCL 21-8-14 authorized

the second part of the injunction, the court should be aware of an additional

problem with the injunction as written. The circuit court attempted to prohibit

Defendants from any future alterations to their property that would “adversely or

unreasonably affect the natural flow of water, either in quantity or its direction of

flow onto the Plaintiffs’ property[.]” (Emphasis added.) The circuit court’s use of

the disjunctive conjunction or indicates that Plaintiffs would be protected under the

injunction from even reasonably adverse alterations in drainage. However, within

certain restrictions, the owner of a dominant estate is generally entitled to drain

onto a servient estate. Hendrickson, 1999 S.D. 74, ¶ 11, 598 N.W.2d at 510. There

is no requirement that the dominant property refrain from all draining that is

adverse to the servient property; rather, drainage must not create “unreasonable

hardship or injury to the owner of the land receiving the drainage[.]” Id. (emphasis

added) (quoting SDCL 46A-10A-20(3)). Thus, the injunction would leave Plaintiffs

in a better position than they are entitled to be under South Dakota’s drainage

laws. Therefore, the second half of the injunction—as written—is overbroad and an

abuse of discretion.


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                                       Conclusion

[¶25.]         Plaintiffs introduced evidence that Defendants drained water onto

Plaintiffs’ property by way of a water course that was neither natural nor

established. Therefore, Defendants were not entitled to judgment as a matter of

law, and the circuit court did not err in denying Defendants’ requests for the same.

However, the injunction issued by the court was improper. The circumstances of

this case demonstrate that Plaintiffs had an adequate remedy at law for their

anticipated future damages and that they could have avoided future litigation by

pursuing that remedy. Therefore, SDCL 21-8-14 did not authorize the first half of

the injunction. The court did not determine whether SDCL 21-8-14 authorized the

second half of the injunction. Even if it did, the second half of the injunction is

overbroad and an abuse of discretion. Therefore, we affirm the court’s denial of

Defendants’ requests for judgment as a matter of law, but we reverse the court’s

grant of injunction and remand for a determination whether SDCL 21-8-14

authorized the future-alterations portion of the injunction. 13

[¶26.]         ZINTER, SEVERSON, WILBUR, and KERN, Justices, concur.




13.      Plaintiffs request reimbursement of appellate attorney fees. SDCL 15-26A-
         87.3 permits us to grant appellate attorney fees “only where such fees are
         permissible at the trial level.” Grynberg Expl. Corp. v. Puckett, 2004 S.D. 77,
         ¶ 33, 682 N.W.2d 317, 324 (quoting Hentz v. City of Spearfish, Dep’t of Pub.
         Works, Office of Planning & Zoning, 2002 S.D. 74, ¶ 13, 648 N.W.2d 338,
         342). However, Plaintiffs have not attempted to explain why they are
         entitled to appellate attorney fees. Therefore, their request is waived. SDCL
         15-26A-60(6); Veith v. O’Brien, 2007 S.D. 88, ¶ 50, 739 N.W.2d 15, 29.

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