This opinion will be unpublished and

may not be cited except as provided by

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







Keith L. Gillette, et al.,


Kenneth L. Peterson, et al.,


Filed June 1, 2004


Peterson, Judge

Mower County District Court

File No. C8021481



Gerald W. Von Korff, Rinke-Noonan, 1015 West St. Germain Street, Suite 300, P.O. Box 1497, St. Cloud, MN  56302-1497 (for respondents)


Bryan J. Baudler, Baudler Baudler Maus & Blahnik, LLP, 108 North Main Street, Austin, MN  55912 (for appellants)



            Considered and decided by Lansing, Presiding Judge; Peterson, Judge; and Huspeni, Judge. *


U N P U B L I S H E D   O P I N I O N


In this appeal from a judgment awarding respondents relief in a water-rights dispute involving appellants’ construction of dams across a creek, appellants argue that (1) they did not violate the doctrine of “reasonable use” by restricting the creek’s water flow across their property and, therefore, there is no basis for awarding respondents damages for their crops; (2) the creek as it crosses appellants’ property is not a public water under Minn. Stat. § 103G.005, subd. 15 (2002), and, therefore, Minn. Stat. § 103G (2002) does not apply to this case; and (d) the district court erred in granting respondents relief under the Minnesota Environmental Rights Act (MERA), Minn. Stat. § 116B (2002).  We affirm.


            Appellants Kenneth L. and Bonnie Peterson and respondents Keith L. and Charolette A. Gillette and Douglas L. and Pamela M. Sheely are the owners of adjacent properties used for agricultural purposes.  The Sheely property adjoins the southern boundary of the appellant’s property, and the Gillette property adjoins the eastern boundary of appellants’ property.

This action arises out of appellants’ construction on their property of dams or field crossings over Roberts Creek, which runs across the Gillette property, then enters the Sheely property and runs along its northern boundary until the creek turns north and enters appellants’ property.  Where Roberts Creek runs along the northern boundary of the Sheely property, a previous owner deepened it into a ditch.  The ditch ends where Roberts Creek turns north to enter appellants’ property.  Immediately to the west of appellants’ property, Roberts Creek becomes a designated public watercourse.

            Kenneth Peterson testified that when he first began farming his property, there was no identifiable channel where the creek crossed his land, but rather the waterway consisted of bogs or wetland that was mostly level with the ground.  In 1983, a contractor hired by Kenneth Peterson deepened and widened Roberts Creek where it ran across appellants’ property.  Initially, the ditch was six feet deep and 25 feet wide, with a fall of 13 to 14 feet from the northern boundary of the Sheely property to the point where it exited appellants’ property.

            Kenneth Peterson testified that before the ditch was constructed, Roberts Creek was about three to four feet lower as it ran along the Sheely property than where it entered appellants’ property; drain tiles on the Sheely property discharged into Roberts Creek; the tile outlets were lower than the elevation of Roberts Creek where it entered appellants’ property; construction of the ditch in 1983 changed a forced water outlet into a natural outlet; and over several years following construction of the ditch in 1983, he deepened and widened it and raised its banks to eliminate flooding problems.

            Mower County constructed a field crossing and installed a culvert across Roberts Creek near the western boundary of appellants’ property.  Because the crossing was too shallow for farm implements to cross, Kenneth Peterson raised the level of the crossing and installed a second culvert with a 24-inch diameter.  Kenneth Peterson also constructed two additional field crossings across Roberts Creek.  One of those field crossings was located near the southern boundary of appellants’ property, and the other one was located between the western and southern field crossings.  In addition to allowing farm implements to cross Roberts Creek, the field crossings created ponds on appellants’ property, which, according to Kenneth Peterson’s testimony, prevented the flooding of his property.  Kenneth Peterson designed the field crossings himself and used dirt, rocks, and demolition debris to construct them.

            William Douglass, a licensed engineer, testified about the impact of the field crossings on the flow of water through Roberts Creek.  Douglass testified that on the south field crossing, he observed a 36-inch culvert covered with dirt and rocks, creating a four-foot obstruction with a 36-inch pipe.  The 36-inch pipe was further obstructed on the downstream side by about two lengths of 30-inch pipe about eight feet long.  The middle field crossing did not have a culvert and held water back to an elevation of at least three feet.  The western field crossing contained multiple culverts, but none of them appeared to be running, meaning they were either plugged or gated.  Douglass observed water ponding around the southern and middle field crossings.  Douglass testified that most agricultural drainage tiles are designed to handle a two-year rainfall.  A two-year rainfall is a rainfall with a probability of occurring on the average every two years or, in other words, a two-year rainfall is an event with a 50% chance of occurring in any given year.  For a two-year rainfall, the obstruction resulting from the southern field crossing would cause water to surcharge over the drainage tiles on the Sheely property.  Submersion of the drain tiles would reduce their capacity, resulting in an increase in the time needed for water to drain from the field.  Douglass also testified about the degradation of water quality resulting from insufficient drainage of ponds, explaining that oxygen will be used up because the pond is not being reaerated by moving water, eventually resulting in decreased dissolved oxygen downstream.  Insufficient drainage can also cause additional problems, including odors.

            Douglas Sheely testified that his corn crop was damaged when a drainage tile stood full of water too long due to being underwater.  The damage occurred in an area where water damage did not typically occur.  Sheely estimated that the amount of damage was about $725.

Following a court trial, the district court determined that appellants violated the duty of reasonable use, discharged pollutants into the creek, and violated the MERA.  The district court awarded respondents $750 in damages; permanently enjoined appellants from obstructing the Roberts Creek channel without first securing permits from the state and appropriate design plans; and awarded respondents costs and disbursements, including attorney fees under the MERA.  This appeal from the judgment followed.


            On appeal from a judgment in a court trial where no motion for a new trial was made, we consider whether the evidence sustains the district court’s findings and whether those findings support the court’s conclusions of law and judgment.  Doan v. Medtronic, Inc., 560 N.W.2d 100, 104 (Minn. App. 1997), review denied (Minn. May 14, 1997).  A district court’s findings “shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the [district] court to judge the credibility of the witnesses.”  Minn. R. Civ. P. 52.01.  In applying rule 52.01, “we view the record in the light most favorable to the judgment.”  Rogers v. Moore, 603 N.W.2d 650, 656 (Minn. 1999).


            Appellants argue that the district court erred in determining that construction of the field crossings violated the doctrine of reasonable use.  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).  “[W]hat is a reasonable use is a fact question to be resolved depending on the facts of each case.”  Kral v. Boesch, 557 N.W.2d 597, 599 (Minn. App. 1996).  Accord Enderson v. Kelehan, 226 Minn. 163, 168-69, 32 N.W.2d 286, 289 (1948).

In Enderson, the supreme court stated that

in effecting a reasonable use of . . . land for a legitimate purpose, a landowner, acting in good faith, may drain his land of surface waters and cast them as a burden upon the land of another . . . if the following conditions are met:


(a) There is a reasonable necessity for such drainage;


(b) If reasonable care be taken to avoid unnecessary injury to the land receiving the burden;


(c) If the utility or benefit accruing to the land drained reasonably outweighs the gravity of the harm resulting to the land receiving the burden; and


(d) If, where practicable, it is accomplished by reasonably improving and aiding the normal and natural system of drainage according to its reasonable carrying capacity, or if, in the absence of a practicable natural drain, a reasonable and feasible artificial drainage system is adopted.


Enderson, 266 Minn. at 167-68, 32 N.W.2d at 289.  These factors are also relevant when determining whether an obstruction constructed by a landowner on his land that inhibits the drainage of surface water from a neighbor’s land is a reasonable use.  See Quist, 410 N.W.2d at 6-7 (applying Enderson test in lawsuit alleging that obstruction constructed on respondent’s property impeded drainage of water from appellant’s property).

The record contains evidence that the field crossings obstructed the drainage of water from the Sheelys’ property resulting in damage to their crops.  Peterson testified that he did not seek any assistance in designing the field crossings.  Douglass testified that most agricultural drainage tiles are designed to handle a two-year rainfall and that, for a two-year rainfall, the obstruction resulting from the southern field crossing would cause water to surcharge over the drainage tiles on the Sheely property.  The evidence supports the district court’s finding that by failing to design or evaluate the impacts of the field crossings, appellants failed to take reasonable care to avoid harm to respondents.  Kenneth Peterson acknowledged that there was an alternative method to create ponds on his property, by digging a deeper channel, and that it was possible to access his fields with farm machinery from the township road.  The ponds created by the field crossings stagnate during base and minimal flow conditions, resulting in chemical and physical changes in the properties of the water, and those changes contribute to changes in the water’s dissolved oxygen concentration and to odors.  The evidence supports the district court’s findings that there was not a reasonable necessity for the obstruction of Roberts Creek on appellants’ property and that there did not appear to be utility accruing to appellants’ property as a result of the obstructions.  The district court did not err in finding that the obstruction of Roberts Creek by appellants was not a reasonable use.


            Appellants argue that the district court erred in determining that appellants were required to obtain a work permit to alter Roberts Creek on appellants’ property because Roberts Creek is not designated as a public waterway until it leaves appellants’ property.  Minn. Stat. § 103G.245, subd. 1(2) (2002), states that “a person must have a public waters work permit to . . . change or diminish the course, current, or cross section of public waters, entirely or partially within the state, by any means, including filling, excavating, or placing of materials in or on the beds of public waters.”

            Statutory construction is a question of law, which this court reviews de novo.  Sorenson v. St. Paul Ramsey Med. Ctr., 457 N.W.2d 188, 190 (Minn. 1990).  When the words of a statute are clear and unambiguous, a court must give effect to the plain meaning of the language.  Minn. Stat. § 645.16 (2002). 

Roberts Creek is designated as a public waterway immediately to the west of appellants’ property.  Minn. Stat. § 103G.245, subd. 1(2), requires a “public waters work permit to . . . change or diminish the . . . course [or] current . . . of public waters . . . by any means.”  (Emphasis added.)  Under the plain meaning of the statutory language, a permit is required for an obstruction that changes or diminishes the course or current of public waters.  It is not necessary that the obstruction actually be located on public waters.

The field crossings on appellants’ property changed or diminished the course or current of Roberts Creek downstream, where Roberts Creek is designated as a public waters.  Because the change or diminishment occurred in public waters, the district court properly enjoined appellants form obstructing the channel of Roberts Creek without first obtaining a public waters work permit under Minn. Stat. § 103G.245, subd. 1(2).


            Appellants argue that the district court erred in granting respondents relief under the MERA.

“Pollution, impairment or destruction” is any conduct by any person which violates, or is likely to violate, any environmental quality standard, limitation, rule, order, license, stipulation agreement, or permit of the state or any instrumentality, agency, or political subdivision thereof which was issued prior to the date the alleged violation occurred or is likely to occur or any conduct which materially adversely affects or is likely to materially adversely affect the environment; provided that “pollution, impairment or destruction” shall not include conduct which violates, or is likely to violate, any such standard, limitation, rules, order, license, stipulation agreement or permit solely because of the introduction of an odor into the air.


Minn. Stat. § 116B.02, subd. 5 (2002); see also Minn. Stat. § 116B.01 (2002) (purpose of MERA).

By violating Minn. Stat. § 103G.245, subd. 1(2), appellants violated an environmental quality standard.  The district court, therefore, properly concluded that appellants violated Minn. Stat. § 116B.02, subd. 5.

Based on our disposition of this case, we do not reach the issue of whether appellants violated Minn. Stat. § 115.061 (2002).


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