HOW TO MAKE SOUTH DAKOTA SURFACE WATER DRAINAGE LAW HOLD WATER.

• Author: Johnson, Justin M.

1. INTRODUCTION

   Anyone caught in the riptide of a drainage issue could easily find themselves drowning in a complex area of law. Municipalities are even more susceptible to sinking due to the numerous and varied roles they hold relating to surface waters. Surface water is generally considered to be that which forms from "falling rains and melting snows" and which then flows over the ground surface until reaching some "well-defined channel." (1) Every South Dakota municipality is granted broad authority to implement a drainage system and issue regulations relating thereto. (2) Effective use of such authority leads to a reduced likelihood of flooding, which is felt directly by both the residents within the city and rural neighbors who share the same drainage basin.

   This article will first identify quirks that spring from the evolution of South Dakota drainage law and its various doctrines, which are useful in understanding recent cases where the South Dakota Supreme Court has implemented its modern-day doctrinal dichotomy on drainage disputes. Next, this article will explain the unique hardship the dichotomy imposes on municipalities. Finally, this article will discuss how South Dakota can provide more uniformity and simplicity without sacrificing any substance.

2. SURVEYING SOUTH DAKOTA DRAINAGE LAW QUIRKS

   A survey of South Dakota's drainage law reveals a number of interesting factoids and oddities. However, it is difficult to understand the significance of these unique characteristics without a bit of perspective. Historically, there have been two diametrically opposed approaches to drainage law: the common-enemy doctrine and the civil law rule. (3) The common-enemy doctrine "appears to have had its American inception in decisions of Massachusetts courts about 1850 or later, and the 'common enemy' phrase was apparently first used in [1875]," whereas the civil law rule, with its origins in "Roman law and the Code Napoleon," was first applied in the United States in 1812. (4)

   While South Dakota has never recognized the common-enemy doctrine, the doctrine has comparative value and is essentially a recognition that surface water "is regarded as an outlaw and a common enemy against which anyone may defend himself, even though by so doing injury may result to others." (5) Therefore, "[i]f one in the lawful exercise of his right to control, manage or improve his own land, finds it necessary to protect it from surface water flowing from higher land, he may do so, and if damage thereby results to another, it is [damage without remedy]." (6) The South Dakota Supreme Court has long recognized the inequity of such a doctrine; unabashedly stating the common-enemy doctrine was "absolutely without basis in reason" and that its application:

   leaves surface waters a mere shuttlecock, to be cast back and forth in accord with the selfish interests of the upper and lower landowners, thus creating in each case a conflict which, as its logical result, resolves itself to the question whether the upper landowner is able to bring into being an irresistible force or the lower landowner can erect an unsurmountable and immovable barrier. (7) These brazen statements show that South Dakota has a long, proven record of attempting to ease the inequities of drainage law. Although not the route chosen by South Dakota, many jurisdictions have elected to modify the extreme position of the traditional common-enemy doctrine in ways that mitigate its inherent injustice. (8)

   In contrast to the common-enemy doctrine, the civil law rule "recognizes that the lower property is burdened with an easement under which the owner of the upper property may discharge surface waters over such lower property through such channels as nature has provided." (9) South Dakota, even prior to statehood, followed the civil law rule. (10) However, a strict interpretation of the civil law rule can just as easily lead to inequitable results and, like the common-enemy doctrine, has long been subject to corrective exceptions and provisos. (11) One of the most prominent qualifications is the "good-husbandry exception," which allows for surface waters to be channeled and accelerated off of a dominant estate and through well-defined channels of a servient estate. (12) South Dakota, which finds itself on the forefront of drainage law with great regularity, adopted this exception back in 1917 with a variant that states:

   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... surface waters... 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. (13) This philosophy carried its way through South Dakota case law relatively unchanged all the way up to the present day. (14) Ultimately, the bottom line to the civil law rule in South Dakota is that natural drainage may be accomplished so long as there is not unreasonable injury to neighboring lands. (15)

   But, the civil law rule only tells half the story of South Dakota's current drainage dogma as the rule only applies to rural surface water drainage. (16) As a counterpart in urban areas, the reasonable use rule applies instead of the civil law rule. (17) Again recognizing an inequity in drainage law, the South Dakota Supreme Court pointed out that a strict application of the civil law rule "would prevent the proper use, development, improvement, and enjoyment of considerable urban property." (18) The reasonable use rule generally stands for the idea that a property owner is entitled to make reasonable use of his or her land even if some harm is occasioned upon a neighboring landowner, and, while jurisdictions may vary greatly upon which factors to consider, the analysis is almost always focused on a balancing of relevant circumstances. (19)

   In South Dakota, the reasonable use rule generates liability only when the landowner's "harmful interference with the flow of surface waters is unreasonable." (20) "There is no set formula for determining reasonableness," and it is to be determined "in light of all the circumstances." (21) Factors considered by courts include: (1) how each party uses the land and drainage water; (2) topography; (3) volume and direction of drainage; (4) consequences of drainage; (5) impact of artificial drainage changes such as grading, hard surfaces, and artificial drains; (6) alternatives available; and (7) avoidance of unnecessary injury. (22) These factors are not exclusive as others "may be relevant depending on the circumstances of the case." (23) As a result, there remains little functional difference between the civil law rule, with its qualifications, and the reasonable use rule. This drift is perhaps the most interesting aspect of South Dakota drainage law. It is almost as if one rule says "the glass is half full" and the other says "the glass is half empty" while either approach results in the same amount of water.

3. CONVERGING STREAMS OF THOUGHT

   The civil law rule and the reasonable use rule have become strikingly similar in South Dakota. These similarities are shown in the following three cases. First, First Lady discusses both the reasonable use rule and civil law rule. (24) Second, Strong exemplifies the application of the reasonable use rule. (25) Finally, Surat Farms fully utilizes the civil law rule. (26)

   1. FIRST LADY, L.L.C. V. JMF PROPERTIES, L.L.C.

      The Black Hills have served as a backdrop to a number of drainage issues, but a dispute arising in Keystone, South Dakota, between the First Lady Motel (Motel) and its neighboring property owner (Tramway), holds an important place in drainage jurisprudence. (27) Both properties sat at the base of a small mountain, but Tramway's property extended up and behind the Motel. (28) While Tramway had been in place for several decades, the Motel and its additions were built in the 1990s. (29) The Motel construction required...