(dissenting).
The trial court’s jury instruction on drainage law was correct. The majority opinion, while citing Feistner v. Swenson, 368 N.W.2d 621 (S.D.1985), LaFleur v. Kolda, 71 S.D. 162, 22 N.W.2d 741 (1946), and Thompson v. Andrews, 39 S.D. 477, 165 N.W. 9 (1917), as support for its position, is, in effect, overruling them.
Thompson contained the following language:
But even though the waters of the basin in question are surface waters and there is a legal burden upon respondents’ lands to receive such waters through the natural water course crossing such lands, such burden and the accompanying easement is one that is reasonable, or, as above noted, one consonant with good neighborliness. Under the claim of an easement appellant could not rightfully turn upon the servient estates large volumes of water, out of all proportion to the capacity of the water course, and thus cause serious damage to respondents.
Thompson, 39 S.D. at 489, 165 N.W. at 13 (emphasis added). At the end of that decision, the Court restated this message:
To summarize: We hold the rule to be that the owner of dominant agricultural lands, situate and lying in the upper portion of a natural drainage water course or water basin has, in the course of and for the purposes of better husbandry, a legal easement right, by means of artificial drains or ditches constructed wholly upon his own land, to accelerate and hasten the flow of waters that are surface waters under the rule herein laid down, and to cast the same into and upon a servient estate lying lower down in the same natural drainage water course, at that point where nature, by means of ravines or depressions, has indicated that such surface waters should find a natural outlet; provided, however, that such surface waters should not be collected or permitted to collect, and then be cast upon the servient estate in unusual or unnatural quantities; and, provided, also, that the surface waters of one natural watershed or basin may not, by means of the cutting or removal of natural barriers, be cast into or upon lower lands lying in another and different natural drainage course or basin.
*38439 S.D. at 491-92, 165 N.W. at 14 (emphasis added). In LaFleur, while expressly overruling Mishler v. Peterson, 40 S.D. 183, 166 N.W. 640 (1918) (owner of dominant property allowed to drain land-locked basin on his property, through drains wholly on his property, into land-locked basin on servient property), the Court reaffirmed Thompson:
This jurisdiction is committed to the principle that lower property is burdened with a natural servitude to receive surface waters from upper property, through such channels as nature has provided, and to the further principle that in the reasonable use of his property the upper owner may artificially drain the same of surface waters along the general course of natural drainage for the area drained, by constructing open or covered drains discharging the water on his own property into some natural watercourse or into a natural depression whereby the water will be carried into some natural watercourse across the servient premises, and such drains may hasten or increase the natural flow of surface water by cutting the rim of a pond or basin. SDC 61.1031. Thompson v. Andrews, 39 S.D. 477, 165 N.W. 9 [(1917)]; Johnson v. Metropolitan Life Ins. Co., S.D. [71 S.D. 155,] 22 N.W.2d 737 [(1946)].
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... Thus on principle the lower owner cannot complain if his basin is filled by natural drainage from upper land. And we think it is not unsound to reason that the settler on lower land must have anticipated and understood that the watercourse across his land must carry an added burden of water as an incident of the improvement and reasonable use of the upper property.
LaFleur, 71 S.D. at 166-67, 22 N.W.2d at 743-44.
Feistner quoted directly the language of Thompson above, which the majority now rejects:
The drainage rights of a dominant landowner must also be exercised reasonably even though the surface water is discharged into a natural watercourse. In Thompson v. Andrews, 39 S.D. 477, 489, 165 N.W. 9, 13 (1917), we set forth the reasonableness doctrine:
But even though the waters of the basin in question are surface waters and there is a legal burden upon respondents’ lands to receive such waters through the natural water course crossing such lands, such burden and the accompanying easement is one that is reasonable, or, as above noted, one consonant with good neighborliness. Under the claim of an easement appellant could not rightfully turn upon the servient estates large volumes of water, out of all proportion to the capacity of the water course, and thus cause serious damage to respondents^]
Feistner, 368 N.W.2d at 623 (emphasis added). See also Gross v. Connecticut Mut. Life Ins. Co., 361 N.W.2d 259, 266 (S.D.1985) (Thompson approved; “reasonable injury” is the limit of higher owner’s rights).
The concerns expressed in the majority opinion, reached by a strained, hypertechnical reading of the law, do not justify departing from the settled law of this state. Discharge of “less than great” quantities of water are unlikely to cause unreasonable injury. (If they do, would they not be “great” in the context of that case?) Nor need we concern ourselves with large quantities of water which do not cause serious injury. If the water, however large in quantity, is within the capacity of the watercourse, it will stay in the watercourse, and, again, the defendant would not be unreasonable. The majority tilts at windmills.
The trial court should have been affirmed as to this issue.
I am hereby authorized to state that Chief Justice Wuest joins in this dissent.