#27966-a-SLZ
2017 S.D. 52

                             IN THE SUPREME COURT
                                     OF THE
                            STATE OF SOUTH DAKOTA

                                    ****
SURAT FARMS, LLC,                            Plaintiff and Appellant,

      v.

BRULE COUNTY BOARD
OF COMMISSIONERS,                            Defendant and Appellee,


                                    ****

                   APPEAL FROM THE CIRCUIT COURT OF
                      THE FIRST JUDICIAL CIRCUIT
                     BRULE COUNTY, SOUTH DAKOTA

                                    ****

                  THE HONORABLE BRUCE V. ANDERSON
                               Judge

                                    ****

THOMAS W. CLAYTON
Sioux Falls, South Dakota                    Attorney for plaintiff and
                                             appellant.


DAVID J. LARSON
JESSICA HEGGE of
Larson Law, PC
Chamberlain, South Dakota                    Attorneys for defendant and
                                             appellee.

                                    ****


                                             CONSIDERED ON BRIEFS
                                             ON APRIL 24, 2017
                                             OPINION FILED 08/30/17
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ZINTER, Justice

[¶1.]        Albert Delany filed a drainage complaint with Brule County alleging

that Surat Farms LLC (Surat) was partially blocking drainage of an intermittent

watercourse. Delany contended that the blockage caused water to back up onto his

adjacent property. The Brule County Board of Commissioners (Board) held a

hearing and found that Surat impermissibly altered the watercourse. Surat

appealed the Board’s decision, and the circuit court, after de novo review, affirmed.

Surat appeals. We affirm.

                          Facts and Procedural History

[¶2.]        Delany and Surat own adjacent farmland located near the Bijou Hills

in Brule County. A natural watercourse flows through both properties. It enters

Delany’s property from the south and continues northeast until it enters a culvert

that runs underneath 352nd Avenue, which divides Delany’s and Surat’s land. As

the water exits the culvert, it empties onto Surat’s property, where it naturally

continues northeast along the watercourse for some distance.

[¶3.]        In 2013, Surat hired a contractor to install drain tile under a field on

its side of 352nd Avenue. The contractor installed a subsurface inlet immediately

beyond the culvert’s outlet. The subsurface inlet was covered by crushed rock and

dirt. Surat’s contractor testified that the inlet enabled water to slowly percolate

into the drain system, but the inlet did not directly accept surface water.

[¶4.]        Delany claimed that in 2014, underground water began entering his

basement on his property. Unsure of the source of the problem, he filed a drainage

complaint against both Surat and Gary Dozark, an upstream landowner. A county


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drainage official inspected the properties. She observed cattails, reeds, dead brush,

and trees on Delany’s property that she believed might be impeding water flow into

the culvert. Delany cleared the blockages but continued to experience water

backup.

[¶5.]         Consequently, Delany filed a second complaint. He also hired Brosz

Engineering to prepare a site map and determine elevations on the properties.

Brosz found a gradual downslope as the water passed through both properties. The

water entered Delany’s property at an elevation of 1,761.4 feet; it left Delany’s

property and entered into the culvert inlet at 1,760.34 feet; it left the culvert’s outlet

at 1,760.02 feet; and it was deposited onto Surat’s property at an elevation of 1,760

feet. Although these elevations confirmed a downslope in the natural drainage,

Brosz found an approximate 15-inch rise in elevation (1761.25 feet) just beyond the

culvert’s outlet where the crushed rock and dirt was placed for Surat’s drain system.

That was the place where it is alleged that Surat’s tiling project caused water to

back up onto Delany’s land.

[¶6.]         The Board inspected the properties and held a hearing. Counsel

appeared on behalf of both parties and presented evidence. 1 In its findings of fact

and conclusions of law, the Board found that Surat’s project “altered the natural

flow of the water” running from Delany’s land to Surat’s land. The Board “required




1.      Although Surat’s drain tile system was a focus at the hearing, Surat refused
        to provide the Board with information regarding the construction and size of
        the drain system it had installed on its property. It also appears that it had
        not obtained a permit to install the drain tile.

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[Surat] to take appropriate action to restore the natural flow of water . . . or

otherwise assure [sic] the drainage of the Delany property accordingly.”

[¶7.]         Surat appealed the Board’s decision to the circuit court. The court

conducted a de novo review of the Board’s decision. The court visited the site, made

observations, and considered both witness and documentary evidence. The court

found that the soil elevation near the drain tile inlet was acting as a dam, backing

up water onto Delany’s land. The court also found that the minimal differences in

elevation along the watercourse meant that even a minor backup of water could

significantly impact an upstream landowner. Finally, the court found Delany

credible when he testified that the backed-up water had rendered portions of his

land unsuitable for calving and haying. Therefore, the court “affirmed [the Board’s

decision] in all respects.”

[¶8.]         Surat appeals, 2 raising two issues. It first contends that the circuit

court erred in finding that Surat’s tiling project impermissibly altered the



2.      This action began with a complaint filed by Delany against Surat. Following
        the Board's ruling in favor of Delany, Surat appealed to the circuit court,
        naming the Board as the appellee. The Board responded, moving to dismiss
        the appeal because the Board had only acted in a quasi-judicial capacity and
        Surat failed to join Delany who was the real party in interest. The record
        suggests that the motion concerning the proper parties on appeal was
        abandoned. The motion was not pursued, Delany appeared at trial, and the
        Board’s counsel defended the Board’s decision. Following the circuit court’s
        decision in favor of Delany, Surat then appealed to this Court. Again, Delany
        was not named as the real party in interest. Similarly, the Board, through
        its counsel, defended the circuit court’s decision in favor of Delany.

        Appeals involving county commissioner decisions should be taken in the
        names of the parties whose interests are at stake. Lyman Cty. v. Bd. of
        Comm’rs of Lyman Cty., 14 S.D. 341, 345, 85 N.W. 597, 598 (1901). That is
        because in some county commission appeals “the commissioners have no
                                                             (continued . . .)
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watercourse. Alternatively, Surat contends that if the watercourse was

impermissibly altered in some respect, the court erred in finding that Delany

suffered the causally-related damages he claimed.

                                 Standard of Review

[¶9.]        Surat appealed to the circuit court under SDCL 7-8-27, which provides

that “[f]rom all decisions of the board of county commissioners . . . there may be an

appeal to the circuit court by any person aggrieved[.]” SDCL 7-8-30 provides that

“[a]ll appeals thus taken to the circuit court shall be . . . heard and determined de

novo.” This Court’s cases have not consistently stated the deference required by

reviewing courts under “de novo” reviews of board of county commissioner decisions.

On one hand we have said that a “court should determine anew the question . . .

independent of the county commissioner’s decision.” Goos RV Ctr. v. Minnehaha

Cty. Comm’n, 2009 S.D. 24, ¶ 8, 764 N.W.2d 704, 707. In such cases, the court “[i]n

effect . . . sits as another board[.]” Chicago & N.W. Ry. Co. v. Schmidt, 85 S.D. 223,

227, 180 N.W.2d 233, 235 (1970). On the other hand, we have stated that the

circuit court should not sit in replacement as a one-person board. See In re

Conditional Use Permit Denied to Meier, 2000 S.D. 80, ¶ 22, 613 N.W.2d. 523, 530.


_________________________________
(. . . continued)
         more interest in its result than has the judge of the circuit court in the result
         of appeals from decisions in [the judge’s] court.” Id. Further, the failure to
         properly appeal can result in an unlawful adjudication of another person’s
         interest without notice or opportunity to be heard. See id. At all times in
         these proceedings, the litigation has remained a real dispute between two
         landowners concerning their respective drainage rights. Further, unlike
         Lyman County, there is no indication that the unnamed real party in interest
         (Delany) lacked notice and opportunity to be heard. Therefore, we entertain
         the appeal.

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Rather, the circuit court may only review the propriety of the action, which is a

much more deferential standard involving the question whether the Board’s

decision was arbitrary and capricious. See Goos RV Ctr., 2009 S.D. 24, ¶¶ 9-14, 764

N.W.2d 704, 707-09.

[¶10.]       We have recently resolved the issue regarding the level of deference

required to be given to non-judicial entities when the Legislature has prescribed de

novo review of their decisions. See S.D. Dep’t of GF&P v. Troy Twp., 2017 S.D. 50

___ N.W.2d ____. Applying Troy Township in this case, we first must determine

whether the Board’s resolution of the drainage complaint was a “quasi-judicial”

matter. If so, then de novo review is appropriate. Id. ¶ 24, ___ N.W.2d at ____. If

not, then review is limited to “the question . . . whether the [Board] ‘acted

unreasonably, arbitrarily, or . . . manifestly abused [its] discretion.’” Id. (quoting

Dunker v. Brown Cty. Bd. of Ed., 80 S.D. 193, 203, 121 N.W.2d 10, 17).

[¶11.]       Here, the Board’s task—an adjudication of a land-drainage dispute

between two landowners—was quasi-judicial. It involved a land dispute between

neighbors, a dispute that could have been “determined as an original action in the

circuit court.” Id. ¶ 21, ___ N.W.2d at ___; accord Knodel v. Kassel Twp., 1998 S.D.

73, ¶ 10, 581 N.W.2d 504, 508 (holding that in cases where an upstream landowner

casts excess water over a downstream landowner’s property, “[a]ctionable injury

may occur if increases in volume or rate cause flooding or erosion.”). Because the

Board’s resolution of this drainage dispute was a quasi-judicial matter, the circuit

court correctly reviewed the Board’s decision anew.




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[¶12.]       A different standard applies to our review of the circuit court’s

decision. We apply the clearly erroneous standard to factual findings by the circuit

court. Tisdel v. Beadle Cty. Bd. of Comm’rs, 2001 S.D. 149, ¶ 5, 638 N.W.2d 250,

252. “Under [that] standard, we do not analyze ‘whether this Court would have

made the same finding that the trial court did,’ but rather we look at ‘whether on

the entire evidence we are left with a definite and firm conviction that a mistake

has been committed.’” Id. ¶ 5, 638 N.W.2d at 252-53 (quoting In re Estate of Roehr,

2001 S.D. 85, ¶ 4, 631 N.W.2d 600, 601). Conclusions of law are given no deference

and are reviewed de novo. City of Aberdeen v. Rich, 2003 S.D. 27, ¶ 9,

658 N.W.2d 775, 778.

                                      Decision

[¶13.]       Surat first argues it did not impermissibly alter the natural flow of the

watercourse. Surat relies on the “reasonable use” rule in surface-water drainage

law. It claims that under that rule it was “legally privileged to make reasonable use

of its land, even though the flow of the surface waters is altered and causes some

harm to [Delany].” See First Lady, LLC v. JMF Props., LLC, 2004 S.D. 69, ¶ 11,

681 N.W.2d 94, 99. Surat contends that under a balancing of the applicable

“reasonable use” factors enumerated in First Lady, it was entitled to construct and

operate its drainage system even though the flow of surface waters were altered and

caused harm to Delany. See id.

[¶14.]       The Board, however, contends that the “civil law rule” applies. Under

that rule, the downstream property is burdened “with an easement under which the

dominant, or upper property owner may reasonably discharge surface water over


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the servient estate through natural watercourses.” Knodel, 1998 S.D. 73, ¶ 10,

581 N.W.2d at 507. Therefore, under that rule, “[a] lower property owner cannot

interfere with the natural flow of surface water to the detriment of an upper

property owner.” Id. ¶ 10, 581 N.W.2d at 508.

[¶15.]       The rule that governs depends on whether the drainage occurs on rural

or urban property. “For rural surface water drainage, South Dakota follows the

civil law rule,” Hendrickson v. Wagners, Inc., 1999 S.D. 74, ¶ 10, 598 N.W.2d 507,

510, and “for urban drainage of surface water, this Court has adopted the

‘reasonable use’ rule.” Strong v. Atlas Hydraulics, Inc., 2014 S.D. 69, ¶ 22, 855

N.W.2d 133, 142. The civil rule controls here because this case involves rural

property over which natural surface water backed up due to alterations on the

surface. Because the civil rule applies, Surat’s claim of privilege to construct a

drain system that dams surface water and floods an upstream property is without

merit.

[¶16.]       Surat alternatively argues that, factually, any increased elevation on

its land preexisted installation of the drain system. Surat contends that except for

Delany’s testimony, “the record contains not one iota of evidence that Surat’s tiling

caused the 15 inch jump” obstructing the watercourse. Surat also contends its

evidence demonstrated a preexisting elevation. Surat specifically contends that: (1)

according to its drain tile contractor, installation of the drain tile caused minimal

alteration of the soil—the contractor smoothed the land “to its original condition”

after placing the drain tile; (2) a contour map, prepared by the tile contractor prior

to installation of the drain tile, can be interpreted to suggest that the increased


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elevation preexisted the contractor’s work; and (3) aerial photographs taken prior to

installation of the drain tile show some water pooling on both sides of the culvert.

Surat argues this evidence establishes that the drain system did not alter the

natural flow of the watercourse.

[¶17.]       But Surat’s evidence was far from compelling. The aerial photographs

indicated that the watercourse flowed from the culvert in years prior to 2013, but

the image from 2015 shows the damming complained of by Delany. Although the

contour map prepared by Surat’s tile contractor could be interpreted to suggest that

some variations in elevation preexisted Surat’s tile work, the map was prepared by

an interested witness. Moreover, the map’s utility was questionable in light of

contrary evidence, including Delany’s testimony and the circuit court’s own

observations of the land. Most importantly, the contractor himself qualified much

of his claim of “no increased elevation” as mere presumptions. He conceded that the

backup of water could be occurring in the area in question; and he only opined that

if there were any changes to the topography, it was not caused by his work given his

efforts to level the land “back out to where it was before we got there.” Finally,

considering the relatively flat slope of the land in that area, any unnatural increase

in elevation caused by the drain inlet construction would cause the backup of water.

[¶18.]       Surat’s evidence creates a dispute of fact regarding the 15-inch

increase in elevation. But “[t]he trier of fact is the exclusive judge of the credibility

of the witnesses and the weight to be given their testimony,” and “all conflicts in the

evidence must be resolved in favor of the trial court’s findings.” Century 21 Assoc.

Realty v. Hoffman, 503 N.W.2d 861, 864 (S.D. 1993). Here, the circuit court was


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best positioned to evaluate the conflicting evidence, and our review of the record

evidence does not leave us with a “definite and firm conviction that a mistake has

been committed.” Tisdel, 2001 S.D. 149, ¶ 5, 638 N.W.2d at 253. The circuit court

did not clearly err in finding that Surat impermissibly altered the watercourse.

[¶19.]       Surat finally argues that even if installation of the drain system

altered the watercourse’s natural flow, Delany did not suffer the damages he

claimed to his basement and land. More specifically, Surat claims that if its drain

system backed up water, the blockage did not cause the water to appear in Delany’s

basement or make his land unsuitable for calving or haying. Surat further claims

that even if there was some backup of water, under First Lady and Feistner v.

Swenson, 368 N.W.2d 621 (S.D. 1985), Delany must have shown more than just

“some harm”: he must have shown “serious damage.”

[¶20.]       We first address Surat’s factual contention that there was no water in

Delany’s basement or flooding of his land. Surat makes a “physics” argument,

claiming that it would be physically impossible for any blockage at the inlet’s

elevation to produce a big enough pool to enter Delany’s basement at its elevation.

Surat points out that its subsurface drain inlet was at an elevation of 1,760 feet,

and the ground floor of Delany’s home was at an elevation of 1,774 feet. Assuming

Delany’s basement was 8 feet beneath this latter elevation, Surat argues that a pool

of water from the subsurface drain inlet would have to rise 8 feet and “defy the laws

of physics” to reach Delany’s basement. But Surat did not introduce hydrological

evidence of the subsurface showing how water moves underground in that




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particular area. Without such evidence, there is no conclusion to be drawn solely

from the relative elevations of the subsurface drain inlet and Delany’s basement.

[¶21.]       Surat’s authorities also fail to support his legal argument that it had

the right to back up water. Neither First Lady nor Feistner considered the extent of

harm an upstream owner must tolerate from the backup of water caused by a

downstream owner. Both cases concerned the amount of drainage the downstream

estate must accept before the upstream estate’s change in discharge is prohibited.

Additionally, Feistner did not hold that natural drainage rights include the right to

flood a neighboring property. On the contrary, we specifically stated that even a

dominant owner’s right to discharge does not include the right “to affect [a]

neighbor’s land in some way other than the way in which it had been affected

before.” Feistner, 368 N.W.2d at 623.

[¶22.]       With respect to how the water impacted Delany’s cropland, Surat

argues that the only evidence of calving or haying on Delany’s property came from

outdated photos taken in the 1980s and that much of Delany’s cropland was in the

conservation reserve program (CRP) for the last ten years. However, Delany

provided contrary evidence. He testified that the rangeland around the drainage

area was not in CRP. He also testified that he was able to hay the land around the

drainage area prior to Surat’s installation of drain tile. Thus, there was conflicting

evidence on this point, and the court’s findings were not clearly erroneous.

[¶23.]       Ultimately, Surat misconstrues the relief that was awarded below.

Although Surat argues that Delany was not entitled to damages for basement

flooding and hay loss, Delany was not awarded such damages. The Board and the


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circuit court only ordered enforcement of the drainage easement Delany held on

Surat’s land. See Knodel, 1998 S.D. 73, ¶ 10, 581 N.W.2d at 508 (holding that

upstream landowners possess an easement over downstream estates to discharge

surface water over the servient estate through natural watercourses). And the

Board—and in turn, the circuit court— only required Surat to “take appropriate

action to restore the natural flow of water across [its land] or otherwise assure [sic]

the drainage of the Delany property accordingly.” This was appropriate injunctive

relief. See Riha v. FirsTier Bank, 539 N.W.2d 632, 792 (Neb. 1995) (“The flow of

water cannot be interfered with by a lower proprietor to the detriment of the upper

proprietor. The proper remedy in water drainage disputes is an injunction.”).

[¶24.]       The evidence supports the circuit court’s finding that Surat’s drain

system improperly interfered with Delany’s drainage rights, and the court did not

err in awarding injunctive relief. We affirm.

[¶25.]       GILBERTSON, Chief Justice, and SEVERSON and KERN, Justices,

and WILBUR, Retired Justice, concur.




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