#28052-aff in pt & rev in pt-DG
2017 S.D. 49

                           IN THE SUPREME COURT
                                   OF THE
                          STATE OF SOUTH DAKOTA

                                  ****
ROBERT RUMPZA,
NANCY RUMPZA and
ZUBKE BROTHERS, LLC,                       Plaintiffs and Appellees,

      v.

DAVID ZUBKE and
MARILYN ZUBKE,                             Defendants and Appellants.


                                  ****

                   APPEAL FROM THE CIRCUIT COURT OF
                      THE FIFTH JUDICIAL CIRCUIT
                      DAY COUNTY, SOUTH DAKOTA

                                  ****

                     THE HONORABLE JON S. FLEMMER
                                Judge

                                  ****

REED RASMUSSEN of
Siegel, Barnett and Schutz, LLP
Aberdeen, South Dakota                     Attorneys for plaintiffs and
                                           appellees.


JACK H. HIEB
ZACHARY W. PETERSON of
Richardson, Wyly, Wise,
 Sauck & Hieb, LLP
Aberdeen, South Dakota                     Attorneys for defendants and
                                           appellants.

                                  ****
                                           CONSIDERED ON BRIEFS
                                           ON APRIL 24, 2017
                                           OPINION FILED 08/09/17
#28052

GILBERTSON, Chief Justice

[¶1.]        Robert and Nancy Rumpza and Zubke Brothers LLC (Brothers) sued

David and Marilyn Zubke for allegedly changing the natural flow characteristics of

water draining from the Zubkes’ property to the Rumpzas’ and Brothers’ properties.

After a court trial, the circuit court granted an injunction against the Zubkes and

awarded damages to the Rumpzas and Brothers. The Zubkes appeal. We affirm

the injunction and Brothers’ damages award. We reverse the Rumpzas’ damages

award.

                            Facts and Procedural History

[¶2.]        This case involves drainage issues between adjoining landowners in

Day County. The Zubkes own the Northwest Quarter of Section 13, Township 120

North, Range 54 West. To the west of the Zubkes, the Rumpzas own the Northeast

Quarter of Section 14, Township 120 North, Range 54 West. And to the west of the

Rumpzas, Brothers owns the Northwest Quarter of Section 14, Township 120

North, Range 54 West. The Zubkes’ and Rumpzas’ properties are separated by Day

County Road 1. The Rumpzas’ and Brothers’ properties are adjacent.

[¶3.]        The Zubkes’ property is dominant, historically draining onto the

Rumpzas’ property in two areas. In the southwest corner of the Zubkes’ property,

water drains through a culvert located below Road 1 (Drainage Area 1), flowing

through the Rumpzas’ property and onto Brothers’ property. However, the culvert

sits about 15 inches higher than the lowest point in the southwest corner of the

Zubkes’ property. Because of the height of this culvert, water collects in the area.

Another culvert permits water to drain from the northwest corner of the Zubkes’

property (Drainage Area 2) into a closed-basin slough on the Rumpzas’ property.
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[¶4.]        In 2012 and 2013, the Zubkes modified the established flow

characteristics of Drainage Areas 1 and 2 in several ways. First, they constructed a

dam and used a portable pump to drain the southwest corner of their property.

Next, they dug a ten-foot-deep pit near the dam and placed a pump inside. When

the water level rises to a certain point, the pump engages, and the contents of the

pit are pumped over the dam, through the culvert, and onto the Rumpzas’ property.

The Zubkes also installed two areas of drain tile: one each in the southwest and

northwest corners (Tile Area 1 and Tile Area 2, respectively) of their property. Tile

Area 2 causes water that would normally drain to the west through the northern

culvert to instead flow south to the pit and pump. Tile Area 1 facilitates draining

areas that previously had remained wet. The cumulative effect of these

modifications is an increase in water flow through Drainage Area 1.

[¶5.]        The Rumpzas and Brothers commenced this suit on July 24, 2013,

seeking an injunction and damages. They argued that the Zubkes’ modifications

had increased the amount of drainage onto their properties and extended the time

that water lingers in the established watercourse. As a result, the Rumpzas and

Brothers claimed they had been unable to plant and harvest crops in areas they had

previously been able to farm. The Zubkes responded that they were simply

compensating for an obstruction in the watercourse on the Rumpzas’ property.

After a court trial on December 14, 2015, the court returned judgment for the

Rumpzas and Brothers. The court entered an injunction prohibiting the Zubkes

from operating the pump installed in Drainage Area 1 and requiring the Zubkes to

immediately remove all drain tile from Tile Area 2. The court also awarded


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#28052

damages to the Rumpzas and Brothers in the total amounts of $12,465 1 and

$16,173, 2 respectively.

[¶6.]         The Zubkes appeal, raising two issues:

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

              2.     Whether there was sufficient evidence to calculate
                     damages.

                                  Standard of Review

[¶7.]         “[T]he question whether an injunction is statutorily authorized is

reviewed de novo, and [a] court’s subsequent decision to grant or deny [an]

injunction is reviewed for an abuse of discretion.” Magner v. Brinkman, 2016 S.D.

50, ¶ 19, 883 N.W.2d 74, 83. An abuse of discretion is “a choice outside the range of

permissible choices[.]” MacKaben v. MacKaben, 2015 S.D. 86, ¶ 9, 871 N.W.2d 617,

622 (quoting Gartner v. Temple, 2014 S.D. 74, ¶ 7, 855 N.W.2d 846, 850). We will

accept the circuit court’s factual findings unless they are clearly erroneous. Id.

                                Analysis and Decision

[¶8.]         1.     Whether the circuit court erred in granting the
                     injunction.

[¶9.]         The Zubkes argue the circuit court erred in concluding the Zubkes

caused damage to the Rumpzas and Brothers. The Zubkes assert the natural flow

of water has been obstructed by silt in the watercourse on the Rumpzas’ property.


1.      The court awarded the Rumpzas $4,675 in damages plus $1,267 in
        prejudgment interest for the year 2013; $2,850 plus $487 for 2014; and
        $2,975 plus $211 for 2015.

2.      The court awarded Brothers $4,000 in damages plus $1,084 in prejudgment
        interest for the year 2013; $7,000 plus $1,197 for 2014; and $2,700 plus $192
        for 2015.

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#28052

According to the Zubkes, their pump system is simply “‘lifting’ the water to a level

that allows it to go over the high point on the Rumpzas’ land and through the

natural drainage way on the servient properties. It is restoring the drainage to

what it would be if the unnatural obstructions were not present.” The Zubkes

further contend that the Rumpzas’ and Brothers’ damages “relate exclusively to

damage to crops that were planted entirely within the natural drainage way that

runs through” their properties. Finally, the Zubkes contend the “hardship to be

suffered by [the Zubkes if the injunction is affirmed] is clearly disproportionate to

the benefit to be gained by the servient landowners[.]”

[¶10.]       In South Dakota, “[t]he 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.’” Magner, 2016 S.D. 50, ¶ 15, 883 N.W.2d at 81 (quoting

SDCL 46A-10A-20(4)). The “rules regarding rural surface water drainage have

been codified in SDCL 46A-10A-20.” Hendrickson v. Wagners, Inc., 1999 S.D. 74,

¶ 11, 598 N.W.2d 507, 510. That statute states, in part:

             [A]ny rural land which drains onto other rural land has a right
             to continue such drainage if:
                (1) The land receiving the drainage remains rural in
                character;
                (2) The land being drained is used in a reasonable manner;
                (3) The drainage creates no unreasonable hardship or injury
                to the owner of the land receiving the drainage;
                (4) The drainage is natural and occurs by means of a natural
                water course or established water course;
                (5) The owner of the land being drained does not
                substantially alter on a permanent basis the course of flow,
                the amount of flow, or the time of flow from that which would
                occur; and


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#28052

                   (6) No other feasible alternative drainage system is available
                   that will produce less harm without substantially greater
                   cost to the owner of the land being drained.

SDCL 46A-10A-20. 3 Subject to these restrictions, “owners of land may drain the

land in the general course of natural drainage through the construction of open or

covered drains which discharge the water into any natural watercourse, and if such

drainage is wholly upon an owner’s land, he is not liable in damages to any person.”

Winterton v. Elverson, 389 N.W.2d 633, 635 (S.D. 1986) (citing SDCL 46A-10A-70).

[¶11.]          The Zubkes first contend their drainage modifications were necessary

to preserve their drainage rights as the owners of the dominant property. The

Zubkes assert silt has caused a highpoint in the watercourse on the Rumpzas’

property that obstructs the flow of water from the Zubkes’ property. In their view,

they are entitled to “restor[e] the natural drainage flow by getting the water up to

an elevation where it can naturally drain over the obstruction.” However, the

Zubkes do not claim the Rumpzas intentionally obstructed the watercourse, nor do

the Zubkes cite any authority for the proposition that a servient landowner has a

duty to clear natural obstructions from a watercourse for the benefit of a dominant

landowner. On the contrary, “the upper owner may not transfer the burdens

imposed by nature on his land to that of the lower owner.” Id. at 635.




3.       Strictly speaking, SDCL 46A-10A-20 itself does not govern the rights and
         liabilities of these parties; that statute applies to “[o]fficial controls instituted
         by a [county drainage] board[.]” However, SDCL 46A-10A-20 correctly states
         the common-law rule developed through our caselaw, which does control this
         case. Thus, it is correct to say, as we did in Hendrickson, that SDCL 46A-
         10A-20 is a codification of the common-law rules that apply in this case.
         Hendrickson, 1999 S.D. 74, ¶ 11, 598 N.W.2d at 510.

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#28052

[¶12.]       Additionally, “it is impermissible for a dominant landowner to collect

surface waters, and then cast them upon the servient estate in ‘unusual or

unnatural quantities.’” Id. (quoting Thompson v. Andrews, 39 S.D. 477, 492,

165 N.W. 9, 14 (1917)). This is true even if the total volume of water remains the

same. See id. “[S]urface water cannot be gathered together and cast in a body on

the property of the lower owner so as to affect that neighbor’s land in some other

way than the way in which it has been affected.” Id. (quoting Feistner v. Swenson,

368 N.W.2d 621, 623 (S.D. 1985)). In this case, the circuit court found:

             Prior to the installation of the pump, the natural waterway
             running through Plaintiffs’ property would typically be wet in
             the spring and then dry out as the year progressed. This usually
             allowed Plaintiffs to farm the entire waterway. Since the
             installation of the pump, Plaintiffs have been unable to farm
             these areas because they are continually wet.
             ....
             Both David Zubke and Defendants’ expert, engineer Mike
             Gutenkauf, acknowledged the Defendants’ drainage system
             caused additional water to flow onto Plaintiffs’ property.
             Defendants’ expert further acknowledged that the drainage
             system changed the timing of how water was deposited on
             Plaintiffs’ property.
             Defendants’ drainage system has substantially altered the
             amount of flow and the time of flow from that which would
             naturally occur.

These findings are supported by testimony from Robert Rumpza and Duane Zubke,

one of the owners of Brothers. The circuit court—which is the sole judge of

credibility in this case, Lindblom v. Sun Aviation, Inc., 2015 S.D. 20, ¶ 9,

862 N.W.2d 549, 552—apparently considered these witnesses credible, and we see

no basis for concluding the court’s findings are clearly erroneous.




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#28052

[¶13.]         Our opinion in Winterton supports our conclusion. In that case, the

owner of a dominant estate “installed a tile drainage system upon his property to

enhance its productivity and to reduce erosion. The system drained only surface

water and discharged it into the natural drainage waterway.” Winterton,

389 N.W.2d at 634. Prior to the modifications, drainage onto the servient estate

was sporadic and forceful. “[T]he rate of flow of the water kept it moving across [the

servient] property so that it would not accumulate or stand for more than a short

period of time.” Id. Thus, the drainage did not prevent the servient estate’s owner

from farming. Id. “However, the tile drainage system caused a continuous and

even flow of surface water to drain at a much slower rate onto [the servient estate].

The water stayed on [the] land rather than flowing over or through it.” Id. The

result was that “the continuous and slower flow of surface waters caused

approximately four acres of [the] land to remain wet for most of the year and

rendered it untillable.” Id. at 635. We held that such amounted to “unnatural or

unusual quantities.” Id. 4

[¶14.]         Winterton also disposes of the Zubkes’ contention that the Rumpzas’

and Brothers’ damages “relate exclusively to damage to crops that were planted

entirely within the natural drainage way that runs through” their properties. As in


4.       According to the Zubkes, Winterton is distinguishable because: (1) the
         servient landowner proved he had been able to farm the land prior to the
         drainage modification; (2) the plaintiffs in the present case contributed to the
         amount of water in the watercourse; and (3) the extra drainage in this case
         does not exceed the capacity of the watercourse. These arguments, however,
         are premised entirely on the Zubkes’ view of the facts. The circuit court
         rejected that view when it found that the Rumpzas and Brothers had been
         able to farm the watercourse prior to—but not after—the Zubkes’
         modifications.

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#28052

the present case, the owner of the dominant estate in Winterton installed a drain-

tile system that “discharged [surface water] into the natural drainage waterway.”

Id. at 634. As noted above, the modifications at issue rendered several acres of

previously tillable land—all located in the natural watercourse—unusable. Id.

at 634-35. Thus, the fact that the damage complained of is located in the natural

watercourse is not dispositive—what matters is that the Zubkes’ drainage

modifications affected the Rumpzas’ and Brothers’ properties “in some other way

than the way in which it has been affected.” Id. at 635 (quoting Feistner,

368 N.W.2d at 623).

[¶15.]       In light of Winterton and the circuit court’s factual findings in this

case, there is a “causative link between the actions of the [Zubkes] and the injury

complained of.” Magner, 2016 S.D. 50, ¶ 19 n.10, 883 N.W.2d at 83 n.10 (quoting

Foley v. City of Yankton, 89 S.D. 160, 165, 230 N.W.2d 476, 479 (1975)). The

Zubkes have not established that they had a right to bypass or compensate for the

natural obstruction in the watercourse on the Rumpzas’ property. Nor have the

Zubkes established that the circuit court clearly erred in finding that their drainage

modifications have caused the watercourse to be continually wet. Therefore, the

circuit court did not err in concluding the Zubkes caused the damage complained of.

[¶16.]       Next, the Zubkes contend that if the injunction is affirmed, “[t]he

hardship to be suffered by [the Zubkes] is clearly disproportionate to the benefit to

be gained by the servient landowners.” The Zubkes again assert that the Rumpzas

and Brothers would be unable to farm land located within the watercourse even if

the Zubkes were required to remove their drainage modifications. But as discussed


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#28052

above, this is a factual matter, and the Zubkes have not met their burden of

showing the circuit court’s findings are clearly erroneous. The Zubkes also contend

the Rumpzas acted inequitably by failing to clear the obstruction from the

watercourse. Again, as noted above, the Zubkes cite no authority for the proposition

that the Rumpzas have a duty to clear naturally occurring obstructions in the

watercourse.

[¶17.]         Regardless, the relative-hardship test is inapplicable in this case.

“[T]he court will not balance equities where the actions of the defendant were taken

willfully and with full knowledge of plaintiff’s rights and the consequences which

might ensue.” Foley, 89 S.D. at 166, 230 N.W.2d at 479. The circuit court found

that “[t]he damages suffered by Plaintiffs have not resulted from an innocent

mistake on the part of Defendants.” The Zubkes do not mention this finding, let

alone challenge it as clearly erroneous. As the circuit court noted, “there is no

question that the equipment was not installed by accident.” Nor can there be any

doubt that the Zubkes were aware that their modifications would increase the

amount of water flowing downstream—the modifications were designed to do just

that. Therefore, the Zubkes’ relative-hardship argument is irrelevant, and the

injunction was not an abuse of discretion.

[¶18.]         2.    Whether there was sufficient evidence to calculate
                     damages.

[¶19.]         The Zubkes next argue that the Rumpzas and Brothers failed to

provide evidence sufficient to support the circuit court’s award of damages. “The

amount of damages to be awarded is a factual issue.” Kreisers Inc. v. First Dakota

Title Ltd. P’ship, 2014 S.D. 56, ¶ 40, 852 N.W.2d 413, 424 (quoting Weekley v.

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#28052

Wagner, 2012 S.D. 10, ¶ 13, 810 N.W.2d 340, 343). The party alleging injury has

the burden of proving the amount of damages with reasonable certainty. See id.

“Once the existence of damage has been shown by a preponderance of the evidence,

a claimant must produce only the best evidence available to allow a jury a

reasonable basis for calculating the loss.” McKie v. Huntley, 2000 S.D. 160, ¶ 20,

620 N.W.2d 599, 604. “The measure of damages for destruction of a crop is the

value at the time and place of destruction. This may be established by showing the

probable yield had there been no injury and the market value thereof, and

subtracting therefrom the necessary cost of tilling, harvesting, and marketing.”

Winterton, 389 N.W.2d at 636-37. 5

[¶20.]         The only evidence introduced by the Rumpzas and Brothers

establishing the amount of loss was the testimony of Robert Rumpza and Duane

Zubke. Duane Zubke testified as follows:

               [Zubke Brothers’ Attorney]: Have you attempted to calculate a
               crop loss as a result of your inability to plant in 2013 and 2014?
               [Duane Zubke]: Yes.
               [Zubke Brothers’ Attorney]: Let’s talk about 2013 first. What
               have you calculated as far as that goes?
               [Duane Zubke]: It’s, roughly, $7,000.
               [Zubke Brothers’ Attorney]: And how do you figure that?

5.       “The market measure attempts to make sure the defendant’s tort or contract
         breach does not leave the plaintiff with assets or net worth less than that to
         which she is entitled.” Dan B. Dobbs, Law of Remedies § 3.3(3) (2d ed. 1993).
         Thus, planting and harvesting expenses that have already been incurred are
         not deducted from the measure of damages. For example, if a farmer does
         not buy or plant seed because his land is already flooded, then in calculating
         damages, the cost of the seed and planting must be deducted from the market
         value of the crop. But if the farmer buys seed and plants it, and then the
         crop is destroyed due to flooding, the cost of the seed and planting should not
         be deducted from the measure of damages.

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             [Duane Zubke]: I took out the—what I did on the rest of the
             land, the seed, the cost of my seed, the fertilizer, chemical,
             fungicide and took that cost off of what the rest of the crop
             was—I believe it was 70 some bushels wheat at the price, the
             current price, and subtracted the inputs from the expense and—
             or the gross revenue I thought I should have gotten and I come
             up with, roughly, I believe it was 7,000 some dollars.
             ....
             [Zubke Brothers’ Attorney]: Can you estimate what the loss was
             for 2014?
             [Duane Zubke]: For 2014 it was, roughly, 7,000.

From Duane’s testimony, it appears that he calculated the projected gross revenue

from the lost crop and deducted the same production costs he incurred in regard to

the rest of his crop. While the possibility exists that some expense was not

deducted, the amount of damages does not need to be proven with absolute

exactness. Swenson v. Chevron Chem. Co., 89 S.D. 497, 505, 234 N.W.2d 38, 43

(1975). In light of Duane’s testimony, we cannot say the circuit court’s factual

findings regarding Brothers’ measure of damages are clearly erroneous.

[¶21.]       However, the court’s findings regarding the Rumpzas’ measure of

damages is another matter. Robert’s testimony on this issue consists of the

following:

             [Rumpzas’ Attorney]: Have you attempted to calculate crop
             losses that you believe you’ve experienced as a result?
             [Robert Rumpza]: Yes, I have.
             [Rumpzas’ Attorney]: What do you have for 2013?
             [Robert Rumpza]: 2015, I figure—
             [Rumpzas’ Attorney]: ‘Thirteen.
             [Robert Rumpza]: Oh, excuse me, ’13. 4675. $4,675.
             [Rumpzas’ Attorney]: And how did you calculate that?




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               [Robert Rumpza]: I used my combine yield monitor to run the
               difference and took the bushels what the rest of the field is doing
               in comparison.
               [Rumpzas’ Attorney]: And did you do a similar calculation—
               [Robert Rumpza]: Yes.
               [Rumpzas’ Attorney]: —for 2014 and 2015?
               [Robert Rumpza]: Yes, I did.
               [Rumpzas’ Attorney]: What did you come up with for 2014?
               [Robert Rumpza]: 2,850.
               [Rumpzas’ Attorney]: Okay. And how about 2015?
               [Robert Rumpza]: 2,975.

In comparison to Duane’s testimony, Robert gives no reasonable basis for

concluding he deducted all—or even any—of the appropriate expenses in calculating

the Rumpzas’ lost profits. 6 As noted above, appropriate costs must be deducted in

calculating the measure of damages. Winterton, 389 N.W.2d at 637; accord Bruha

v. Bochek, 76 S.D. 131, 135, 74 N.W.2d 313, 315 (1955). “It is obvious that . . . the

court did not have sufficient data before it upon which to determine the actual

damage.” Bruha, 76 S.D. at 135, 74 N.W.2d at 315. Therefore, we reverse.

                                       Conclusion

[¶22.]         The circuit court did not err in concluding the Zubkes caused the

damage complained of in this case, and the court did not abuse its discretion by

issuing the injunction. The court’s factual findings regarding Brothers’ measure of

damages are not clearly erroneous. However, there is no support in the record for

the court’s findings regarding the Rumpzas’ measure of damages.


6.       Robert did testify that he planted but did not harvest in 2015. So while it
         was not necessary to include the cost of planting in the damages calculation
         for 2015, see supra ¶ 19 n.5, there is no indication that Robert deducted the
         other appropriate expenses.

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[¶23.]       We affirm the injunction and Brothers’ damages award. We reverse

the Rumpzas’ damages award.

[¶24.]       ZINTER, SEVERSON, and KERN, Justices, and WILBUR, Retired

Justice, concur.




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