(concurring in part, dissenting in part).
I concur in that part of the majority opinion that holds respondents’ action is not barred by the statute of limitations. I also concur in that part of the opinion that supports the trial court’s denial of punitive damages. I further concur with the majority upholding the award of damages and finding a nuisance occurred to respondents’ property.
I respectfully dissent insofar as the majority opinion reverses the trial court’s order requiring abatement of the nuisance. Having found a nuisance occurred with damage to respondents’ property, abatement of that nuisance is for the trial court.
This case deals with the law governing the drainage of surface waters from one property and its effect on others. The unreasonable drainage of surface waters from one property to another (as occurred here) clearly constitutes a nuisance to the other lands affected by the discharge. See Pell v. Nelson, 294 Minn. 363, 201 N.W.2d 136 (1972). The evidence fully supports the findings.
*217In 1986, the Skochenskis lodged a complaint with appellants about property damage resulting from excess water drainage from appellants’ mobile home park. Appellants then constructed a drainage swale on the Skochenskis’ property to absorb the excess water runoff. This involved some excavation, installation of a grate and gravel and planting of soil.
In March 1989, an “ice dam” formed one night causing the water to be diverted out of the swale and onto and across respondents’ property. Respondents filmed the damage and informed the appellants’ employee the next day. Appellants did nothing to correct or alleviate the damage to respondents’ property.
Respondents offered expert testimony by Jed K. Reed, who stated that reconstruction of the swale would not necessarily remedy the situation, and a swale does not guarantee protection after several years. Appellants did not present any contradictory expert evidence but continued to rely on their own assertion that the swale worked well before the formation of the ice dam and reconstruction of the swale should be sufficient. The expert’s testimony was consistent with the stated position of the City of Watertown.
Minnesota law is clear that the extent of relief to be granted in nuisance cases lies largely within the discretion of the trial court. Robinson v. Westman, 224 Minn. 105, 29 N.W.2d 1, 6-7 (1947); see Pell, 294 Minn, at 136, 201 N.W.2d at 363.
Anything which is injurious to health, or indecent or offensive to the senses, or an obstruction to the free use of property, so as to interfere with the comfortable enjoyment of life or property, is a nuisance. An action may be brought by any person whose property is injuriously affected or whose personal enjoyment is lessened by the nuisance, and by the judgment the nuisance may be enjoined or abated, as well as damages recovered.
Minn.Stat. § 561.01 (1990) (emphasis added).
Significant to decision on appeal are the trial court’s findings, which include the following:
7. On not less than three additional occasions during 1985 the City of Water-town, through written correspondence, brought to [appellants’] attention the potential for damages to Lots 9 and 10, * * * as a result of the discharge of water from [appellants’] private storm sewer drainage system.
‡ * ⅝ * $ #
9. In or about May of 1986, after receiving complaints of property damage from the owner of Lot 9 * * * caused by water drainage from [appellants’] private storm sewer, [appellants] caused to be constructed a drainage swale upon and within the drainage easement located upon Lot 9 * * *.
10. In or about March of 1989 excessive water drainage flowing from [appellants’] private storm sewer began moving across [respondents’] Property.
11. [Respondents] gave [appellants] timely notice of the discharge of and damages' from water flowing through [appellants’] private storm sewer onto [respondents’] Property.
12. [Appellants] failed and refused to take any actions to correct, alleviate or otherwise abate the continuing damage to [respondents’] property caused by water draining from [appellants’] private storm sewer.
13. As a result of the water flowing from [appellants’] private storm sewer drainage system, [respondents’] Property has been severely damaged by water erosion. Such erosion has caused dangerous conditions to result on [respondents’] Property.
14. Due to the damage to their property, [respondents] have suffered a loss of the use of a portion of their property over the last 23 months.
15. [Respondents’] Property will continue to suffer further and additional damage due to water erosion as a result of drainage from [appellants’] private storm sewer system until such time as *218necessary improvements are made to said storm sewer system.
16. [Appellants’] failure to adequately maintain their private storm sewer drainage system and [appellants’] inadequate construction of a drainage swale over and across the drainage easement located upon Lot 9 * * * are the proximate cause of the damages to [respondents’] Property.
17. The cost of repair to [respondents’] Property, including costs previously incurred ($280.00), is $6,000.00.
18. The value of [respondents’] loss of use of the subject portion of their property over the preceding 23 months is reasonably valued at $2,555.55.
CONCLUSIONS OP LAW
1. [Appellants’] actions and inactions in allowing substantial volumes of water and other matter to flow upon and across [respondents’] Property constitute an obstruction to [respondents’] free use of their property, interfering with the comfortable enjoyment of [respondents’] Property. As such, [appellants’] private storm sewer drainage system as presently maintained and utilized constitutes an actionable nuisance pursuant to Minn. Stat. § 561.01 which allows judgment for abatement of the nuisance and damages resulting from such nuisance.
Having determined that there is an actionable nuisance under evidence that supports the findings and conclusions, it was entirely within the trial court’s statutory authority to order a storm sewer to abate further damage, and determine how the nuisance should be abated. This court should not substitute its own judgment for that of the trial court as to how the nuisance should be abated. See Hueper v. Goodrich, 263 N.W.2d 408, 411 (Minn.1978); Pell, 294 Minn. at 366, 201 N.W.2d at 138-39. Fact issues are for the trial court. Romanik v. Toro Co., 277 N.W.2d 515, 518 (Minn.1979).
I am not aware of any authority which permits a court (trial or appellate) to assign the exercise of its discretion to a party in interest, but that is what the majority opinion would do.
On the issue of abatement, I dissent.