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STATE OF MINNESOTA
IN COURT OF APPEALS
C0-00-908
Steve Wear, et al.,
Appellants,
vs.
Buffalo-Red River Watershed District,
defendant and third-party plaintiff,
Respondent,
vs.
Houston Engineering, Inc., third-party defendant,
Respondent,
Lyle Wilkens, Inc., third-party defendant,
Respondent.
Filed February 13, 2001
Affirmed
Anderson, Judge
Clay County District Court
File No. C9981339
Dan D. Plambeck, Stefanson, Plambeck & Foss, 403 Center Avenue, Suite 302, P.O. Box 1287,
Moorhead, MN 56561-1287 (for appellants)
Dan T. Ryerson, John E. Varpness, Gislason, Martin & Varpness, P.A., 7600 Parklawn Avenue
South, Suite 444, Edina, MN 55435 (for respondent Buffalo-Red River Watershed District)
Duane R. Breitling, Ohnsdtad Twichell, P.C., 15 Broadway, Suite 206, Fargo, ND 58102-4907
(for respondent Houston Engineering, Inc.)
Barton J. Cahill, Cahill & Maring P.A., P.O. Box 1238, Moorhead, MN 56560 (for respondent
Lyle Wilkens, Inc.)
Considered and decided by Toussaint, Presiding Judge, Anderson, Judge and Mulally, Judge.*
S Y L L A B U S
I. In determining the scope and purpose of a ditch improvement project, a watershed district must
balance costs and benefits, but is not required to design a project so that it prevents all possible
crop damage.
II. When a watershed district improves and repairs a ditch to withstand a rainstorm not expected to
occur more than once every ten years, the district is not liable for damage resulting from overflow
after a more severe rainfall.
O P I N I O N
ANDERSON, Judge
Appellant property owners contend that respondent watershed district negligently improved a ditch
where, after heavy rainfall, the ditch overflowed, causing property damage. Because the watershed
district did not breach its duty by improving the ditch to withstand a ten-year event, we affirm.
FACTS
On May 17, 1996, over four inches of rain fell in the Buffalo Red-River Watershed District in Clay
County, Minnesota. As a result of the heavy rainfall, water ran over the west bank of Clay County
Ditch No. 2 causing damage to nearby property owned by appellants Steve Wear and Wayne and
Donna Moll.
Clay County Ditch No. 2, originally constructed in 1905, is approximately nine miles long, with
lateral arms collecting drainage through natural and man-made waterways. Over time, the ditch fell
into disrepair. As a result, in May 1995, respondent Buffalo Red-River Watershed District
(BRRWD) entered into a contract with Lyle Wilkens, Inc. (Wilkens) to improve the ditch.
Respondent Houston Engineering, Inc. (Houston) designed the ditch to withstand a ten-year event,
that is, a rainstorm of a severity occurring, on average, once every ten years. The Engineer's Final
Report, outlining the ditch improvements, stated that “[f]or this area we have found that a ditch
designed to carry a 10-year storm is the most cost effective.” To avoid significant landowner
assessments, Houston and BRRWD also decided that culvert replacement work for the ditch would
be completed at a later date, funded by a state bridge-bonding program.
After the construction was completed in late 1995, appellant Wear noticed that the new spoil bank
was lower than the old bank, and expressed his concerns to BRRWD. Wear testified that he
observed water spill over the previous bank at that location several times, added more dirt to the
previous spoil bank to direct any overflow across the highway, and requested to BRRWD that
similar action be taken to raise the spoil bank again. The minutes from a BRRWD board meeting
reflect that the BRRWD had “directed” Wilkens to raise the spoil bank. BRRWD, however,
repudiated this statement at trial, contending it never actually directed Wilkens to raise the spoil
bank, and “directed” was a poor word choice for the meeting minutes.
Engineer testimony at trial contradicted Wear's claim that the spoil banks should have been raised.
Houston's engineer testified that the new spoil banks were designed so that excess water would
overflow onto fields, rather than over public roads. The Clay County Engineer agreed, testifying that
public policy requires that spoil banks be lower than road elevations. The county engineer also
stated that no one, including Wear, had permission to raise spoil banks to direct water across a
public road.
On May 16, 1996, just prior to the flooding, Houston and BRRWD inspected the ditch to
determine whether any further work was needed to satisfy the contract, and noted, in writing,
Wear's concerns about the lowered spoil bank. The spoil bank, however, was not raised.
On the evening of May 17, 1996, water from the heavy rain ran over the west bank of Clay County
Ditch No. 2 and damaged appellants' property. Appellants sued, alleging negligence. After a bench
trial, the district court concluded that appellants failed to establish negligence or any other viable
theory for recovery. [1] The district court denied appellants' motion for amended findings, and this
appeal followed.
ISSUE
Did the district court err in concluding that appellants did not prove Buffalo Red-River Watershed
District was negligent in failing to construct a higher spoil bank of a county ditch?
ANALYSIS
Appellants claim their flood damage stems from respondents' negligent improvement of Clay County
Ditch No. 2. To prevail on a negligence claim, appellants must establish (1) the existence of a duty;
(2) breach of that duty; (3) that the breach proximately caused the injury; and (4) injury in fact.
Lubbers v. Anderson, 539 N.W.2d 398, 401 (Minn. 1995).
The district court did not provide a detailed explanation for its conclusion that appellants failed to
establish liability. Appellants do not challenge the district court's finding that heavy rainfall caused the
ditch to overflow and damage appellants' property, so the questions of causation and damages are
not at issue. Accordingly, the critical questions are whether a duty existed and, if so, whether that
duty was breached.
A. Duty
The existence of a legal duty is generally a question of law, subject to de novo review.
ServiceMaster v. GAB Bus. Serv., Inc., 544 N.W.2d 302, 307 (Minn. 1996). The plaintiff in a
negligence action has the burden of proof. Marlow v. City of Columbia Heights, 284 N.W.2d
389, 392 (Minn. 1979).
Appellants claim Minn. Stat. § 103D.631, subd. 1 (1996) gives rise to a duty; that statutory
provision requires watershed districts to maintain projects in a condition to accomplish the purposes
for which they were constructed. Appellants also note that an engineer has the ability to modify
plans and specifications as the work proceeds and as circumstances require. Minn. Stat. §
103E.501, subd. 4 (1996).
Appellants correctly point out that BRRWD has a duty to maintain its ditches, and to complete the
“purpose” of any construction. The “purpose” of the construction in this case, however, is disputed.
Appellants, pointing to language in the Engineer's Final Report, contend that the purpose of the
construction was to “prevent crop loss in [an] area which has been subject to several fairly high
rainfall years recently.” Although the background section of the Engineer's Final Report contains that
language, it appears as part of a general explanation concerning the necessity of improvements to
Ditch No. 2. BRRWD maintains that the purpose of the construction was to create a ditch system
that could handle the run-off occurring during a ten-year event.
At trial, an engineer testified regarding the purpose of the project:
Q: In other words, the purpose of this project was to increase the flow of water
through the ditch and do some badly needed repairs, prevent some crop losses [to]
farmers. And whether or not this particular spoil bank was raised[,] or lowered[,
or] remains the same has nothing to do with the purpose of that project, right?
A: Essentially, what we were trying to do in the design of the ditch is to pick a
specific rain event, in this case it was a 10-year event or a storm that would happen
on average once every ten years, and we try to get the water surface profile in the
ditch below the elevation of the fields so that the fields will be able to drain into the
ditch, the ditch will transport water away[,] and standing water will not kill the
crops.
Although the district court did not make a specific finding on the purpose of the construction, the
engineer's testimony was uncontradicted. The purpose of the improvements was to allow the ditch
to handle the run-off created by a ten-year event. Implicitly, the improved ditch would prevent
crop-loss from overflow caused by less severe storms, but nothing in the record established that
prevention of all crop losses was the purpose of this project.
Because it is clear that the ditch was designed and constructed to handle a ten-year event, the next
question is whether BRRWD had a duty to improve the ditch to handle a more severe rainfall. An
engineer on the project analyzed the total expense of constructing a ditch that would never
overflow. His analysis is reflected in the final report:
[F]or this area we have found that a ditch designed to carry a 10-year storm is the
most cost effective. For example, to construct a ditch that would contain the
discharge from a storm that will probably be exceeded only once every 25 years
would result in a well functioning project, however, since the cross-section of the
ditch would be extremely large, the cost
of the ditch would be more than the benefits that could be derived from it. Therefore, the ditch has
been designed to have a capacity equal to the ten-year storm.
Appellants failed to provide expert or other testimony establishing that the ten-year event standard
was inappropriate, that respondents failed to design and construct the ditch improvements to
specifications, or that such improvements must be designed and constructed to prevent all crop
losses. Thus, on this record, we conclude that BRRWD's duty, pursuant to Minn. Stat. §
103D.631, subd. 1, was to improve Ditch No. 2 to withstand a ten-year event.
B. Breach
Appellants argue that BRRWD breached its statutory duty to maintain the ditch. Specifically,
appellants argue that BRRWD (1) knew of Wear's concerns that the spoil bank was lowered as a
result of the improvements and failed to correct the problem and (2) could have ordered the county
to replace the culverts, but did not. But appellants' arguments are based on a flawed premise: that
the purpose of the improvements was to prevent all crop losses.
In a negligence action, whether a breach of a duty occurred is a question for the fact finder. Smith
v. Carriere, 316 N.W.2d 574, 575 (Minn. 1982). A district court's findings of fact will not be
reversed on appeal unless clearly erroneous. Minn. R. Civ. P. 52.01. A clearly erroneous finding is
one that is palpably and manifestly against the weight of the evidence. Enderson v. Kelehan, 226
Minn. 163, 169, 32 N.W.2d 286, 289-90 (1948) (involving surface drainage rights).
Appellants have not shown that BRRWD failed to fulfill its duty to improve Clay County Ditch No.
2 to handle a ten-year event, the purpose of the construction. Appellants also do not dispute the
engineer's testimony that over four inches of rain in one evening exceeds the “ten-year event”
standard. BRRWD's failure to do what Wear requested, in addition to appellants' property damage,
does not establish any breach of BRRWD's duty to maintain the ditch to withstand flooding up to
and including a ten-year event.
Appellants cite Hansen v. City of St. Paul, 298 Minn. 205, 214 N.W.2d 346 (1974) to support
the theory that respondents breached their duty by failing to raise the spoil banks. In Hansen, the
supreme court concluded that a city could be held liable in tort for permitting dogs the city knew to
be dangerous, vicious, and impoundable to prowl uncontrolled on public sidewalks. Id. at 209-10,
214 N.W.2d at 349. Because the city knew of the danger and waited too long to apprehend the
dogs, the court concluded that the city could be held liable to a victim of the attack. Id. But Hansen
is distinguishable. While the plaintiff in Hansen proved that the city failed to maintain safe streets for
its citizens, appellants have not shown that BRRWD failed to maintain the ditch in accordance with
its duty.
Appellants also contend that BRRWD breached its duty by not compelling immediate replacement
of culverts or an increase in the hydraulic capacity of existing culverts. But Minn. Stat. §103E.525,
subd. 3 (1996), states that a proper road authority must construct required culverts within a
reasonable time and only if the road authority does not, the drainage authority “may” order culverts
constructed. “May” is permissive, not mandatory. See Minn. Stat. § 645.44, subd. 15, 16 (2000).
In addition, even if true, these alleged failures would not constitute a breach of BRRWD's duty to
improve Ditch No. 2 to withstand a ten-year event; appellants failed to establish that new culverts
or increased hydraulic capacity were necessary to equip the ditch system to handle a ten-year
event. Accordingly, appellants' argument fails.
C. Reasonable Use Doctrine
Appellants also rely on the reasonable use doctrine, which states that if certain conditions are met, a
landowner acting in good faith has the right to drain surface water across the land of a neighbor.
Matter v. Nelson, 478 N.W.2d 211, 214 (Minn. App. 1991) (citations omitted). Appellants argue
that respondents failed to analyze the benefits and harms associated with lowering the spoil bank
before the new culverts were installed, and failed to analyze the risks and benefits of any possible
solutions in response to Wear's concerns about the height of the spoil banks.
Respondents challenge this theory on procedural grounds, stating that it was not argued at trial. See
Thiele v. Stich, 425 N.W.2d 580, 582 (Minn. 1988) (issues not raised in district court generally
may not be considered for first time on appeal). Appellants correctly note that they referred to the
reasonable use doctrine in their pretrial statement. But appellants did not argue this theory during
trial. The reasonable use doctrine again was raised in appellants' post-trial motion. Because the
district court was faced with the arguments for the first time in a post-trial brief, we conclude they
were not adequately raised in the district court and are not properly before us.
Even if this issue were properly before this court, appellants' argument focuses on BRRWD's failure
to take action. BRRWD, however, discharged any duty it had to improve Ditch No. 2 and was not
required to take actions inconsistent with the purpose of the project and inconsistent with public
policy and public safety.
D E C I S I O N
The watershed district did not breach its duty to improve a ditch by constructing it to withstand a
ten-year event. The district court properly rejected the landowner's negligence claim.
Affirmed.
Footnotes
* Retired judge of the district court, serving as judge of the Minnesota Court of Appeals by
appointment pursuant to Minn. Const. art. VI, § 10.
[1] The district court's findings and conclusions do not address respondent's assertion of statutory
immunity. Because we have determined that the district court did not err in concluding that
respondent was not negligent, and because the parties did not argue immunity on appeal, we do not
address it.
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