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lawsuitdefendantjurisdictiontrialeasement
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Kougl v. Curry, 73 S.D. 427, 44 N.W.2d 114, 22 A.L.R.2d 1039

Facts

Albert Kougl owned the Northwest Quarter of Section Seven in Union County, South Dakota, while Joseph J. Curry owned the adjoining Southwest Quarter of the Northeast Quarter of the same section. A drainage district was organized prior to 1915, leading to the construction of an embankment in 1916 to facilitate drainage. The embankment remained unchallenged until Kougl attempted to modify it in 1944, leading to this lawsuit. The defendants claimed a prescriptive right to maintain the embankment, which the trial court upheld.

Plaintiff is the owner of the Northwest Quarter (NW 1/4) of Section Seven (7), Township Ninety-one (91), North, Range Forty-nine (49), West of the 5th P.M., in Union County, South Dakota. Defendants are the owners of the adjoining Southwest Quarter (SW 1/4) of the Northeast Quarter (NE 1/4) of said section. These tracts are almost level, but nature provided for drainage of surface waters to the east and south from plaintiff's property to defendants' property down a general slight grade.

Issue

Whether the defendants had acquired a prescriptive right to maintain the embankment that obstructed the natural drainage of surface waters from Kougl's property.

The right of the defendants to maintain a dike or levee along the boundary line between forty-acre tracts owned respectively by the parties, and thereby to obstruct the natural drainage of surface waters from plaintiff's tract, was placed in issue by this action.

Rule

An easement is extinguished by a use of the servient tenement by the possessor of it which would be privileged if, and only if, the easement did not exist, provided the use is adverse as to the owner of the easement and continuous and uninterrupted for the period of prescription, which is twenty years in this jurisdiction.

The accepted doctrine is that the right to be free from the flow of surface waters may be acquired by the servient tenement by prescription.

Analysis

The court found that the defendants' maintenance of the embankment was open, continuous, and notorious since its construction in 1916, which established a prescriptive right. The court noted that the use of the embankment was inconsistent with Kougl's right to drainage, and there was no evidence to rebut the presumption that the use was adverse. The court concluded that the natural servitude had been extinguished by prescription.

As indicated, it is undisputed that the levee was constructed as a part of a drainage system. The plan probably did not contemplate the turning of surface waters back on to plaintiff's dominant tenement, but as the ditch along the west side of the embankment filled up, water has been intermittently impounded on the upper property.

Conclusion

The Supreme Court affirmed the trial court's judgment, holding that the defendants' maintenance of the levee was lawful and that Kougl's claim to restore the natural drainage was denied.

Judgment affirmed.

Who won?

Joseph J. Curry and the other defendants prevailed in the case because the court found that they had established a prescriptive right to maintain the embankment, which obstructed Kougl's drainage.

The trial court concluded that the defendants had acquired a prescriptive right to maintain the levee and thereby to free their property from the flow of surface waters from plaintiff's property.

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