Maddock v. Andersen

2013 ND 80, 830 N.W.2d 627, 2013 WL 1960737, 2013 N.D. LEXIS 72
CourtNorth Dakota Supreme Court
DecidedMay 14, 2013
DocketNo. 20120271
StatusPublished
Cited by1 cases

This text of 2013 ND 80 (Maddock v. Andersen) is published on Counsel Stack Legal Research, covering North Dakota Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Maddock v. Andersen, 2013 ND 80, 830 N.W.2d 627, 2013 WL 1960737, 2013 N.D. LEXIS 72 (N.D. 2013).

Opinion

SANDSTROM, Justice.

[¶ 1] Francis and Deborah Maddock appeal a district court judgment denying their request for permanent injunctive relief. We affirm.

I

[¶ 2] Larry and Jane Andersen operate a farm approximately three miles from the Maddocks’ property. In the 1960s, a drainage ditch was built by Larry Andersen’s father to allow water to drain into a slough located on the Andersens’ property. The Maddocks allege the Andersens’ ditch now causes water to unnaturally drain onto their property, and they sought a permanent injunction stopping the flow of water from the ditch onto their land. At trial, both the Maddocks and the Ander-sens presented their own expert witness, each of whom testified to the flow of water from the slough and various other areas and to the environmental makeup of pooling water. Other lay witnesses also testified.

[¶ 3] The district court concluded the Maddocks failed to show the water on their property came primarily from the Andersens’ drain and the Maddocks failed to identify or investigate three other possible locations from which water might flow onto their land. The district court also concluded it is necessary for the drainage ditch to remain open to protect the Ander-sens’ home and the Andersens took reasonable care to avoid unnecessary damage to the Maddocks’ land.

[¶ 4] The district court had jurisdiction under N.D. Const, art. VI, § 8, and N.D.C.C. § 27-05-06. The Maddocks timely appealed from the district court order under N.D.R.App.P. 4(a). We have jurisdiction under N.D. Const, art. VI, §§ 2 and 6, and N.D.C.C. § 28-27-01.

II

[¶ 5] On appeal, the Maddocks argue the district court erred in finding the An-dersens complied with the reasonable use rule and the Maddocks were not entitled to injunctive relief.

[¶ 6] The granting of an injunction may be appropriate if a property owner is unreasonably draining land. See Martin v. Weckerly, 864 N.W.2d 93 (N.D.1985):

The granting of injunctive relief is equitable in nature and rests in the sound discretion of the trial court. The trial court’s ruling will not be reversed on appeal unless there has been an abuse of discretion. State for Ben. of Employees of State v. Jensen, 331 N.W.2d 42 (N.D.1983). Here, the trial court, in its discretion, formulated an injunction to prohibit Weckerly from unreasonably draining his land of surface water. It does not appear to impose undue constrictions upon Weckerly.

Id. at 98.

[¶ 7] The Maddocks argue the district court should have found the Andersens were unreasonably draining them land. The Maddocks specifically argue the district court erred in finding the Andersens complied with the reasonable use rule.

[¶ 8] Our review of a district court’s findings Of fact is well-established. “A trial court’s findings of fact will not be set aside unless clearly erroneous.” Albrecht v. Metro Area Ambulance, 2001 ND 61, ¶ 6, 623 N.W.2d 367. “A finding of fact is clearly erroneous if it is induced by an erroneous view of the law, if no evidence supports it, or if, on the entire record, we are left with a definite and firm conviction a mistake has been made.” Niska v. Falconer, 2012 ND 245, ¶ 10, 824 N.W.2d 778. “ We do not reweigh evidence or reassess credibility, nor do we reexamine findings [631]*631of fact made upon conflicting testimony. We give due regard to the trial court’s: opportunity to assess the credibility of the witnesses, and the court’s choice between two permissible views of the evidence is not clearly erroneous.’” B.J. Kadrmas, Inc. v. Oxbow Energy, 2007 ND 12, ¶ 7, 727 N.W.2d 270 (quoting Buri v. Ramsey, 2005 ND 65, ¶ 10, 693 N.W.2d 619).

[¶ 9] We have defined the reasonable use doctrine in deciding issues of surface water drainage:

[I]n effecting a reasonable use of his land for a legitimate' purpose a landowner, acting in good faith, may drain his land of surface waters and cast them as a burden upon the land of another, although such drainage carries with it some waters which otherwise never would have gone that way but would have remained on the land until they were absorbed by the soil or evaporated in the air.

Weckerly, 364 N.W.2d at 94-95 (footnote omitted). Further, surface water drainage satisfies the reasonable use doctrine if:

(a) There is a reasonable necessity for such drainage;
(b) If reasonable care be taken to avoid unnecessary injury to the land receiving the burden;
(c) If the utility or benefit accruing to the land drained reasonably outweighs the gravity of the harm resulting to the land receiving the burden; and
(d) If, where practicable, it is accomplished by reasonably improving and aiding the normal and natural system of drainage according to its reasonable carrying capacity, or if, in the absence of a practicable natural drain, a reasonable and feasible artificial drainage system is adopted.

Id. at 95 (quoting Young v. Hamilton, 332 N.W.2d 237, 242 (N.D.1983)). The Mad-docks argue the district court’s findings of each element were clearly erroneous.

A

[¶ 10] The Maddocks argue the Andersens did not demonstrate a reasonable necessity for their use of the drainage ditch. Larry Andersen testified at trial he stopped raising hogs on his farm because he ran out of space because of the rising water. The Andersens’ expert witness testified that if the drainage ditch were closed, the water would rise approximately 2.2 feet onto the Andersens’ farmstead. The Maddocks contend, however, this observation is false. The Maddocks’ expert witness introduced photographic evidence at trial showing that if the drain were closed, the overflow from the slough would drain in another direction and not onto the Andersens’ farmstead. The district court found the Andersens’ testimony more credible and found it reasonably necessary for the Andersens to keep the ditch open to protect their farmstead. We conclude the district court’s finding is not clearly erroneous.

B

[¶ 11] The Maddocks next argue the Andersens did not take reasonable care to avoid unnecessary injury to their property. Specifically, the Maddocks argue Larry Andersen testified other drainage ditches on his property flow into the overflowing slough and he has not taken any steps to plug those ditches or prevent further overflow. At trial, the district court heard testimony from Michael Kelly, who acknowledged he cleaned and dredged the other drainage ditches on the Ander-sens’ property. The Maddocks argue the dredging and cleaning of drainage ditches near the property constitutes unreasonable care. The Andersens acknowledge water [632]*632flows from their property, but it cannot be shown whether it is the cause of the Mad-docks’ damage. The Andersens’ expert witness testified there are at least three other watersheds drawing water onto the Maddocks’ property. The district court found the Andersens could take no reasonable steps to avoid damage.

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Bluebook (online)
2013 ND 80, 830 N.W.2d 627, 2013 WL 1960737, 2013 N.D. LEXIS 72, Counsel Stack Legal Research, https://law.counselstack.com/opinion/maddock-v-andersen-nd-2013.