This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2002).







John A. Swenson,





Brian Fossey,


Bruce Zeilinger,


City of Lino Lakes,




Filed February 25, 2003


Anderson, Judge


Anoka County District Court

File No. C2001652


Steven E. Antolak, Laurence A. Anderson, Metropolitan Law Center, Ltd., 14985 Glazier Avenue, Suite 650, Apple Valley, MN  55124 (for appellant)


Jon A. Hanson, Mark J. Kemper, Hanson Lulic & Krall, 920 Second Avenue South, Suite 2100, Minneapolis, MN  55402 (for respondent Brian Fossey)


David Oskie, James M. Hamilton, Oskie and Bauch, P.A., 970 Raymond Avenue, Suite 202, St. Paul, MN  55114 (for respondent Bruce Zeilinger)


            Considered and decided by Peterson, Presiding Judge, Anderson, Judge, and Halbrooks, Judge.


U N P U B L I S H E D  O P I N I O N



            This is an appeal from a judgment arising out of litigation between neighbors over drainage issues.  Applying the reasonable-use test, the district court found that the respondents had not unreasonably interfered with appellant’s use of his property and awarded appellant no relief.  We affirm.



            Appellant John Swenson purchased a house on the northwest shore of Lake Reshanau in Anoka County in 1984.  The house was built in 1978-79.  In 1996, respondent Brian Fossey built a house on the lot immediately to the south of appellant’s lot.  In the same year, respondent Bruce Zeilinger built a house on the lot immediately to the northeast of appellant.

            The lowest floor of appellant’s house was built at 885.5 feet above sea level.  The lowest floors of respondents’ houses were built at 887 feet above sea level.  Appellant’s property had been, at some time, artificially lowered.  Prior to construction by respondents, appellant attempted to improve the drainage of his property by installing drainage tile and a sump pump.  Appellant did not utilize ground extensions on his downspouts, and he built a deck above his patio, which shielded the patio from snow build-up, thus accelerating frost-heave.

Fossey’s garage is set back 6 feet to the south of appellant’s lot and has no gutters or downspouts.  Fossey built a retaining wall between his property and that of appellant and partially installed a drainage system to channel water from the area behind the retaining wall to Lake Reshanau (the completion of the system was delayed due to this litigation).   Rainwater and snow run-off flow north, down the roof of Fossey’s garage, onto a built-up area between the garage and the retaining wall.  The district court found no evidence of significant run-off onto appellant’s property.  The district court concluded that some run-off, from heavy rains or snow-melts, does run onto appellant’s property but that no significant amount flows toward appellant’s home or concrete patio. 

            Zeilinger’s garage is set back 5 feet, 2 inches to the north of appellant’s lot.  The garage roof slopes southwesterly toward appellant’s property.  Between Zeilinger’s lot and that of appellant there is a ground swale, which aids in the drainage of rainwater and snow-melt.  Some of the water draining from Zeilinger’s garage runs onto appellant’s lot and then into the swale, ultimately draining into Lake Reshanau.  The district court found that no significant portion of run-off from Zeilinger’s property flows toward appellant’s home or concrete patio.

            Appellant commenced this suit against respondents, alleging that their actions caused water to flow onto appellant’s property and constituted a trespass, nuisance, and illegal drainage.  Appellant sought damages and temporary and permanent injunctions prohibiting respondents from diverting water onto his property.

            Roughly a week before trial, appellant moved for a change of venue because he discovered that Fossey is the brother of the Anoka County court administrator and the brother-in-law of a district court judge seated in Anoka County.  This motion was denied.

            At the beginning of the trial, respondents joined in a motion to limit the relief requested by appellant because indispensable parties (respondents’ spouses) had not been joined in the litigation.  The district court reserved action and decided to wait until after the trial to rule on the motion.  At the close of appellant’s case, respondents moved for judgment as a matter of law and renewed the motion to limit relief because their spouses—indispensable parties—had not been joined.  The district court denied respondents’ motions.  Appellant then requested the district court join respondents’ spouses as defendants.  The district court denied appellant’s request, stating that there was no evidence that respondents’ spouses had been served with process.

            The district court ultimately found for respondents and denied appellant’s request for injunctive and equitable relief.  The district court mentioned in its order that indispensable parties had not been joined.  This appeal followed.


I.          Did the district court err in denying appellant’s claim for equitable relief?

            A.        Was there sufficient evidence to support the district court’s ruling?

            We note, and appellant acknowledged at oral argument, that appellant did not move for judgment notwithstanding the verdict or a new trial, pursuant to Minn. R. Civ. P. 50.02.  Where the appellant has failed to move for a new trial, this court’s review is limited to determining whether the evidence sustains the district court’s findings and whether those findings support the court’s conclusions and judgment.  Erickson v. Erickson, 434 N.W.2d 284, 286 (Minn. App. 1989).

Factual findings will not be set aside unless they are clearly erroneous.  Minn. R. Civ. P. 52.01.  Application of this rule necessitates viewing “the record in the light most favorable to the district court.”  Rogers v. Moore, 603 N.W.2d 650, 656 (Minn. 1999).  Due regard will be given to the district court’s opportunity to weigh the credibility of witnesses.  Minn. R. Civ. P. 52.01.  It is not a reviewing court’s province to reconcile conflicting evidence.  Fletcher v. St. Paul Pioneer Press, 589 N.W.2d 96, 101 (Minn. 1999).  This court will not reverse a district court’s judgment merely because we view the evidence differently.  Rogers, 603 N.W.2d at 656.  Although the standard of review is more broad for a bench trial than for a jury verdict, we will not reverse the district court’s findings absent clear error.  Runia v. Marguth Agency, Inc., 437 N.W.2d 45, 48 (Minn. 1989).  If the district court’s findings are reasonably supported, this court will not disturb them.  Rogers, 603 N.W.2d at 656.

            Reviewing courts analyze nuisance claims arising out of drainage disputes, by applying the doctrine of reasonable use, which is highly fact-oriented and must be applied on a case-by-case basis.  Matter v. Nelson, 478 N.W.2d 211, 214 (Minn. App. 1991).  The district court’s findings regarding this doctrine will not be disturbed unless substantially and manifestly contrary to the whole of the evidence presented at trial.  Pell v. Nelson, 294 Minn. 363, 366, 201 N.W.2d 136, 138-39 (1972).

            In general, a cause of action for nuisance is based on the obstruction of the free use of the property of another that interferes with the comfortable enjoyment thereof.  Minn. Stat. § 561.01 (2002).  A person so injured may be entitled to injunction or abatement of the nuisance and damages.  Id.

            In order to succeed in this type of nuisance action, a complainant must demonstrate that he has been injured by the unreasonable diversion of water to his property from that of another.  Highview North Apartments v. County of Ramsey, 323 N.W.2d 65, 71 (Minn. 1982).  The test for reasonableness in this context has a number of factors that must be considered.  Id.  These factors include, but are not limited to, (1) whether the drainage is reasonably necessary, (2) have measures been taken to avoid unnecessary harm to others, and (3) does the utility or benefit to the draining land outweigh the harm done to the land to which the water is drained?   Highview North, 323 N.W.2d at 71.  Additional factors occasionally considered include (1) was the improvement causing the drainage made for the distinct purpose of draining the property, or was the draining merely incidental to the improvement; or (2) was the drainage accomplished by improving a natural system of flow or by artificial means?  Id.; see Sheehan v. Flynn, 59 Minn. 436, 443-44, 61 N.W. 462, 463-64 (1894).

            Here, the district court made extremely detailed and thorough findings of fact supported by an equally detailed memorandum.  In its findings, the district court concluded that drainage from respondents’ property is reasonably necessary and related to the reasonable use of respondents’ properties, reasonable measures have been taken to avoid unnecessary harm to appellant, the benefit to respondents through their reasonable use of their respective properties is not outweighed by any harm caused to appellant, and respondents have simply aided and improved existing drainage flow.

            The district court gave very detailed explanations, based on the evidence presented at trial, supporting its findings.  Indeed the court went beyond simply finding that respondents were not causing appellant harm through the unreasonable use of their property but explained in its findings what was causing appellant harm.  The court found that much of the harm appellant attributed to respondents was actually caused by appellant’s own actions, inaction, or causes completely beyond the control of anyone.

            At trial, the district court was presented with 55 exhibits and testimony from nine witnesses.  The exhibits included topographical maps, plat maps, water-level records, a videotape, and numerous pictures.  In addition, the district court judge visited, and personally observed, the properties at the center of the dispute.  The court specifically found at least one of appellant’s witnesses to be not credible.  It is the district court’s province to hear and weigh evidence, and to make factual findings based on these credibility determinations.  Fletcher, 589 N.W.2d at 101.  Where the determination is highly fact-oriented, the district court’s findings are given much weight.  Pell, 294 Minn. at 366, 201 N.W.2d at 138-39.  The district court’s detailed findings leave very little to assumption or inference.[1]  The district court’s findings were sufficiently supported by the evidence presented and those findings support the court’s judgment.

             B.       Did the district court apply the proper standard?

            Appellant argues that the district court applied the wrong standard in deciding the nuisance issue.  We disagree.  In its findings of fact memorandum the court specifically articulated the test applied in water-nuisance cases.

            Appellant contends that, because the district court found that some water from respondents’ properties flowed onto his property, he should be entitled to some damages.  This argument is not consistent with statutory or case-law authority.  Minn. Stat. § 561.01, under which appellant seeks relief, states that there must be injury or interference with, or obstruction to, the appellant or the use of his property.  In addition, the case law concerning this issue is very clear that only when water flowing from one party’s property onto that of another causes unreasonable or unnecessary harm is a nuisance present.  See Pell, 294 Minn. at 366, 201 N.W.2d at 138; Matter, 478 N.W.2d at 214.  Reading the statute together with the case law applying it reveals that the simple occurrence of water flowing from one property to another is not actionable.  Rather, there must be unreasonable harm caused by the draining water.  The district court applied the proper standard in resolving the nuisance issue.

II.         Did the district court err in denying appellant’s motion for a change of venue?

            Again, because appellant did not move for a new trial, under Minn. R. Civ. P. 50.02, our review is limited to a determination of “whether the evidence sustains the findings of fact and whether findings sustain the conclusions of law and the judgment.”  Gruenhagen v. Larson, 310 Minn. 454, 458, 246 N.W.2d 565, 569 (1976). 

            We note that “district courts have wide discretion in deciding motions for change of venue and such decisions will be sustained absent a clear abuse of that discretion[.]”  State v. Jones, 647 N.W.2d 540, 544 (Minn. App. 2002) (citing State v. Fratzke, 354 N.W.2d 402, 406 (Minn. 1984)).  Here, no evidence is offered that the district court abused its discretion, thus, further analysis of this issue is not necessary because our limited scope of review is not implicated by this record.  Id.

III.       Did the district court err by failing to join indispensable parties?             

            At the outset of the trial, and again after appellant had rested, respondents moved the court to limit any potential relief because indispensable parties had not been joined.  The court reserved its ruling on this motion until after the close of evidence.  Ruling on such a motion is within the discretion of the district court and will be reversed only if the court clearly abused its discretion.  Lyman Lumber Co. v. Dior Dev., Inc., 409 N.W.2d 30, 32 (Minn. App. 1987), review denied (Minn. Sep. 30, 1987).  At the close of appellant’s case appellant, sought a retroactive amendment of the complaint to include respondents’ spouses as parties. 

Minn. R. Civ. P. 19.01 states that persons who are “subject to service of process shall be joined if[,]” in their absence, complete relief cannot be afforded.  Thus, it appears that respondents’ spouses should have been joined as necessary parties.  We conclude, however, that any error concerning this issue was harmless because appellant’s substantial rights were not affected thereby.  See Minn. R. Civ. P. 61.   This ruling would have affected appellant only if the court had found that respondents’ actions had caused him harm.  The court found that appellant had not proven that respondents had damaged his property.  It is highly unlikely that the result would have been different had respondents’ spouses been joined.


[1] We note that, for the most part, appellant is not really challenging the sufficiency of the evidence presented at trial and whether the district court’s decision was appropriately supported by this evidence. Rather, he argues that the district court was simply wrong in evaluating the evidence as it did.  And if the district court made different factual findings, appellant’s argument for a different result would be more compelling.  But this court does not make factual findings.  See Pell v. Nelson, 294 Minn. 363, 366, 201 N.W.2d 136, 138-39.  Instead, this court must accept the district court’s findings of fact unless palpably contrary to the evidence.