Horizon Development Group, L.L.C., Respondent, vs. Cavalier Condominium Association, Appellant.

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This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (1996).

 

 

 STATE OF MINNESOTA

 IN COURT OF APPEALS

 C5-97-763

Horizon Development Group, L.L.C.,

Respondent,

vs.

Cavalier Condominium Association,

Appellant.

 Filed January 6, 1998

 Reversed and remanded

 Forsberg, Judge**

Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.

Olmsted County District Court

File No. CX962441

Steven J. Holland, Mackall, Crounse & Moore, PLC, 1400 AT&T Tower, 901 Marquette Avenue, Minneapolis, MN 55402 (for respondent)

Frederick S. Suhler, Jr., 2212 SW Second Street, Rochester, MN 55902 (for appellant)

Considered and decided by Davies, Presiding Judge, Willis, Judge, and Forsberg, Judge.

 U N P U B L I S H E D O P I N I O N

 FORSBERG, Judge

Appellant claims the district court erred by awarding summary judgment to respondent. Because the record shows the existence of disputed issues of material fact, we reverse and remand.

 FACTS

Apartment complexes owned by appellant Cavalier Condominium Association and respondent Horizon Development Group abut on what is Cavalier's east boundary and Horizon's west boundary. A street is the north boundary for both complexes. After extended drainage disputes, Cavalier built a wall on the property line, and Horizon's property flooded. Horizon sued, seeking damages and an injunction requiring Cavalier to remove the wall and not to obstruct Horizon's drainage. The district court originally awarded Horizon summary judgment on liability. Later, the district court awarded Horizon summary judgment on damages and issued the requested injunction. Cavalier appeals.

 D E C I S I O N

On appeal from a summary judgment, we review whether there are genuine issues of material fact and whether the trial court correctly applied the law. State by Cooper v. French, 460 N.W.2d 2, 4 (Minn. 1990). In doing so, we view the evidence in the light most favorable to the party against whom summary judgment was granted. Fabio v. Bellomo, 504 N.W.2d 758, 761 (Minn. 1993).

1. In determining liability for obstruction or diversion of water, Minnesota courts apply the "reasonable use rule." Collins v. Wickland, 251 Minn. 419, 425, 88 N.W.2d 83, 87 (1958). Under the "reasonable use rule"

[e]ach possessor [of land] is legally privileged to make a reasonable use of his land, even though the flow of surface waters is altered thereby and causes some harm to others. He incurs liability only when his harmful interference with the flow of surface water is unreasonable. The issue of reasonableness or unreasonableness is a question of fact to be determined in each case upon a consideration of all the relevant circumstances, including such factors as the amount of harm caused, the forseeability of the harm on the part of the possessor making the alteration in the flow, the purpose or motive with which he acted, and others.

 Id. at 425, 88 N.W.2d at 88 (quoting Kinyon & McClure, Interferences with Surface Waters, 24 Minn. L. Rev. 891, 904)).

Horizon's property was developed in 1975, and Cavalier's property was developed in 1978. The district court ruled that a 1975 map showing the pre-development and proposed post-development elevations of Horizon's property demonstrates that "the general flow of water should be * * * across [Horizon's] property onto [Cavalier's] property[.]" The map, however, is unclear and suggests that the "existing elevation" of part of the east boundary of Cavalier's property is "1025[,]" significantly above the stated pre- and post-development elevations for Horizon's property. If this is accurate, at least part of the land that would become the Cavalier complex in 1978 was higher than Horizon's land and drainage in that area would not have flowed to Cavalier's property. Also, an affidavit of a Cavalier official, who is also an engineer, states that the pre-development drainage was from north to south and that Horizon put a garage near the property line that obstructed this drainage pattern. On this record, fact questions exist regarding the direction of the drainage and whether Horizon obstructed the drainage of its own property. Further, under the reasonable use rule, the question of whether Cavalier's interference (if any) with Horizon's drainage is reasonable, is a fact question. Collins, 251 Minn. at 425, 88 N.W.2d at 87. Fact questions are not to be resolved in a summary judgment proceeding. See Nord v. Herreid, 305 N.W.2d 337, 339 (Minn. 1981) (district court is not to resolve fact questions in summary judgment proceeding). 3

Olmsted County District Court

File No. CX962441

Steven J. Holland, Mackall, Crounse & Moore, PLC, 1400 AT&T Tower, 901 Marquette Avenue, Minneapolis, MN 55402 (for respondent)

Frederick S. Suhler, Jr., 2212 SW Second Street, Rochester, MN 55902 (for appellant)

Considered and decided by Davies, Presiding Judge, Willis, Judge, and Forsberg, Judge.

 U N P U B L I S H E D O P I N I O N

 FORSBERG, Judge

Appellant claims the district court erred by awarding summary judgment to respondent. Because the record shows the existence of disputed issues of material fact, we reverse and remand.

 FACTS

Apartment complexes owned by appellant Cavalier Condominium Association and respondent Horizon Development Group abut on what is Cavalier's east boundary and Horizon's west boundary. A street is the north boundary for both complexes. After extended drainage disputes, Cavalier built a wall on the property line, and Horizon's property flooded. Horizon sued, seeking damages and an injunction requiring Cavalier to remove the wall and not to obstruct Horizon's drainage. The district court originally awarded Horizon summary judgment on liability. Later, the district court awarded Horizon summary judgment on damages and issued the requested injunction. Cavalier appeals.

 D E C I S I O N

On appeal from a summary judgment, we review whether there are genuine issues of material fact and whether the trial court correctly applied the law. State by Cooper v. French, 460 N.W.2d 2, 4 (Minn. 1990). In doing so, we view the evidence in the light most favorable to the party against whom summary judgment was granted. Fabio v. Bellomo, 504 N.W.2d 758, 761 (Minn. 1993).

1. In determining liability for obstruction or diversion of water, Minnesota courts apply the "reasonable use rule." Collins v. Wickland, 251 Minn. 419, 425, 88 N.W.2d 83, 87 (1958). Under the "reasonable use rule"

[e]ach possessor [of land] is legally privileged to make a reasonable use of his land, even though the flow of surface waters is altered thereby and causes some harm to others. He incurs liability only when his harmful interference with the flow of surface water is unreasonable. The issue of reasonableness or unreasonableness is a question of fact to be determined in each case upon a consideration of all the relevant circumstances, including such factors as the amount of harm caused, the forseeability of the harm on the part of the possessor making the alteration in the flow, the purpose or motive with which he acted, and others.

 Id. at 425, 88 N.W.2d at 88 (quoting Kinyon & McClure, Interferences with Surface Waters, 24 Minn. L. Rev. 891, 904)).

Horizon's property was developed in 1975, and Cavalier's property was developed in 1978. The district court ruled that a 1975 map showing the pre-development and proposed post-development elevations of Horizon's property demonstrates that "the general flow of water should be * * * across [Horizon's] property onto [Cavalier's] property[.]" The map, however, is unclear and suggests that the "existing elevation" of part of the east boundary of Cavalier's property is "1025[,]" significantly above the stated pre- and post-development elevations for Horizon's property. If this is accurate, at least part of the land that would become the Cavalier complex in 1978 was higher than Horizon's land and drainage in that area would not have flowed to Cavalier's property. Also, an affidavit of a Cavalier official, who is also an engineer, states that the pre-development drainage was from north to south and that Horizon put a garage near the property line that obstructed this drainage pattern. On this record, fact questions exist regarding the direction of the drainage and whether Horizon obstructed the drainage of its own property. Further, under the reasonable use rule, the question of whether Cavalier's interference (if any) with Horizon's drainage is reasonable, is a fact question. Collins, 251 Minn. at 425, 88 N.W.2d at 87. Fact questions are not to be resolved in a summary judgment proceeding. See Nord v. Herreid, 305 N.W.2d 337, 339 (Minn. 1981) (district court is not to resolve fact questions in summary judgment proceeding). 1

2. Because we conclude the current record does not support an award of summary judgment on the drainage or reasonable use issues, we must remand the case. See, e.g., Nord, 305 N.W.2d at 339-40 (reversing summary judgment and remanding because of existence of fact issue); see Steinhilber v. Prairie Pine Mut. Ins. Co., 533 N.W.2d 92 (Minn. App. 1995) (same). Under these circumstances, we need not address the parties' claims regarding causation and damages.

3. We express no opinion on the remanded issues.

  Reversed and remanded.

 

 

 

  12/29/97

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