#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
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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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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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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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[¶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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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).
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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).
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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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[¶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
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(. . . 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 . . .)
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[¶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
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(. . . 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.
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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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Magner v. Brinkman
Court: South Dakota Supreme Court
Date filed: 2016-07-13
Citations: 2016 SD 50, 883 N.W.2d 74
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