This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2000).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

C8-00-1241

 

Harvey Pulkrabek, et al.,

Appellants,

 

vs.

 

Wilbur Novacek, et al.,

Respondents.

 

Filed January 23, 2001

Reversed and Remanded

Kalitowski, Judge

 

Polk County District Court

File No. C199502

 

Dwain E. Fagerlund, Johannson, Rust, Fagerlund, Yon & Stock, P.A., 407 North Broadway, P.O. Box 605, Crookston, MN 56716 (for appellants)

 

Barry P. Hogan, Jason M. Hastings, Hogan Law Firm, P.C., 403 Center Avenue, Suite 600, P.O. Box 677, Moorhead, MN 56561-0677 (for respondents)

 

            Considered and decided by Crippen, Presiding Judge, Randall, Judge, and Kalitowski, Judge.

U N P U B L I S H E D   O P I N I O N

KALITOWSKI, Judge

            This action arises out of respondents’ construction of an embankment on their property that impeded the natural flow of surface water from appellants’ property and allegedly caused flooding and damage.  Appellants brought an action seeking an injunction requiring removal of the embankment, and monetary damages for lost crops and the reduction of the fair-market value of their property.  Appellants challenge the district court’s order for summary judgment in favor of respondents contending the district court erred in finding there were no genuine issues of material fact as to the existence of damages, an essential element of their case.  We reverse and remand.

D E C I S I O N

On an appeal from summary judgment, we ask two questions:  (1) whether there are any genuine issues of material fact and (2) whether the lower courts erred in their application of the law.

 

State by Cooper v. French, 460 N.W.2d 2, 4 (Minn. 1990) (citation omitted).

“Surface waters” consist of waters from rain, springs, or melting snow which lie or flow on the surface of the earth, but which do not form part of a well-defined body of water or natural watercourse.

 

Enderson v. Kelehan, 226 Minn. 163, 167, 32 N.W.2d 286, 288-89 (1948) (footnote omitted).  With regard to a landowner’s diversion or obstruction of surface water, Minnesota follows the rule of reasonable use.  Quist v. Kroening, 410 N.W.2d 5, 6 (Minn. App. 1987).

            “In determining reasonableness, a court should consider the extent of harm caused, its foreseeability, and the landowner’s motive for the action taken.”  Kral v. Boesch, 557 N.W.2d 597, 599 (Minn. App. 1996) (citation omitted).  “No one factor or circumstance is controlling and what is a reasonable use is a fact question to be resolved depending on the facts of each case.”  Id. (citation omitted); Enderson, 226 Minn. at 168-69, 32 N.W.2d at 289.

Appellants contend they raised genuine issues of material fact as to damages and therefore, the district court improperly issued an order for summary judgment.  A motion for summary judgment will be granted only when

the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue of material fact and that either party is entitled to a judgment as a matter of law.  On appeal, the reviewing court must view the evidence in the light most favorable to the party against whom judgment was granted.

 

Fabio v. Bellomo, 504 N.W.2d 758, 761 (Minn. 1993) (citation omitted).  No genuine issue of material fact exists “[w]here the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party.”  DLH Inc. v. Russ, 566 N.W.2d 60, 69 (Minn. 1997) (alteration in original) (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S. Ct. 1348, 1356 (1986)).  A genuine issue for trial must be established by substantial evidence.  Id. at 69-70.  What constitutes substantial evidence is not defined, but the standard “has been applied to require evidence sufficient to avoid a directed verdict at trial.”  Id. at 70 (quotation omitted).

[A] moving party is entitled to summary judgment when there are no facts in the record giving rise to a genuine issue for trial as to the existence of an essential element of the nonmoving party’s case.

Id. at 71 (quotation omitted).  In a case involving the obstruction of surface water, a plaintiff must demonstrate unreasonable use, such as actual injury or damage resulting from defendant’s action, to prevail.  Kral, 557 N.W.2d at 599; Evers v. Willaby, 444 N.W.2d 856, 860 (Minn. App. 1989); Quist, 410 N.W.2d at 7.

            Here, the district court found that appellants have not demonstrated any genuine issues of material fact regarding damage to their property as a result of respondents’ embankment.  We disagree.  Appellant Harvey Pulkrabek submitted an affidavit alleging, among other things, that the sale and rental values of his property had been reduced as a result of respondents’ dike.  The district court found that it could not “attach any credence to [appellant’s] opinion” regarding the alleged reduction of his property’s value.  But this conclusion is contrary to the well-established principle of law that an owner is competent to give opinion testimony as to the value of the property.  Vreeman v. Davis, 348 N.W.2d 756, 757 (Minn. 1984).  “[A]ny weakness in the foundation for that opinion goes to its weight, not its admissibility.”  Id. (citation omitted).  Because appellant’s opinion is admissible, we conclude that a genuine issue of material fact was raised regarding whether respondents’ embankment caused damage to appellants’ property.

            Moreover, in response to respondents’ motion for summary judgment, Pulkrabek attached copies of an insurance claim for damage to his crops.  The district court disregarded this evidence because Pulkrabek did not provide any

further explanation or evidence as to the type of loss for which [he was] reimbursed or the cause of such loss, and [made] no connection between that transaction and [his] claim against [Novacek].

 

But viewing the evidence in the light most favorable to appellants, the insurance claim raises a factual issue as to whether appellants’ property suffered damage.  Since “reasonable persons might draw different conclusions” from this evidence, summary judgment in favor of respondents was inappropriate.  See Russ, 566  N.W.2d at 69-70 (citation omitted).

            Finally, we note that in granting respondents’ motion for summary judgment on the basis of appellants’ alleged failure to establish damages, the district court did not address appellants’ request for an injunction requiring respondents to remove the embankment.  It is undisputed that the Middle River-Snake River Watershed District informed respondent Wilbur Novacek that he was in violation of its rules because he had not obtained a permit from them to build his embankment and that the District advised him that he would have to remove the embankment, unless he could reach an agreement with Pulkrabek.  On remand the district court should address appellants’ request for injunctive relief.

            Reversed and remanded.