ALVINE FAMILY LTD. PARTNERSHIP v. Hagemann

#25233-a-SLZ

2010 SD 28

IN THE SUPREME COURT
OF THE
STATE OF SOUTH DAKOTA

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ALVINE FAMILY LIMITED
PARTNERSHIP, Plaintiff and Appellant,

v.

JAMES HAGEMANN, HAGEMANN
RED ANGUS and FLOYD DEMARAY, Defendants and Appellees.

* * * *
APPEAL FROM THE CIRCUIT COURT OF
THE THIRD JUDICIAL CIRCUIT
LAKE COUNTY, SOUTH DAKOTA

* * * *

HONORABLE TIM D. TUCKER
Judge

* * * *

RONALD A. PARSONS, Jr. of
Johnson, Heidepriem,
Abdallah & Johnson, LLP
Sioux Falls, South Dakota Attorneys for plaintiff
and appellant.

MARK V. MEIERHENRY
WILLIAM E. BLEWETT of
Meierhenry & Sargent, LLP
Sioux Falls, South Dakota Attorneys for defendants
and appellees.

* * * *

ARGUED JANUARY 14, 2010

OPINION FILED 03/17/10
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ZINTER, Justice

[¶1.] Alvine Family Limited Partnership (Alvine) sued a neighboring

landowner and his tenant for, inter alia, negligence, nuisance, and trespass. Alvine

alleged that manure from the tenant’s cattle had entered Alvine’s land, causing

aquatic plant growth and a fish kill in two stock dams. At the close of the evidence,

Alvine moved for judgment as a matter of law on his claim for trespass. The circuit

court denied the motion. The jury subsequently returned a defense verdict. Alvine

renewed his motion for judgment as a matter of law on the trespass claim, and the

circuit court denied the motion. Alvine appeals, arguing that there was no dispute

regarding an intentional physical intrusion and any disputes regarding causally

related harm were irrelevant because a trespass to land occurs by physical intrusion

irrespective of harm. We conclude that causally related harm became an element of

trespass under the court’s instructions, and because Alvine did not argue

instructional error in his post-trial motions, causally related harm became an

element of trespass under the law of this case. Because the dispute of fact

regarding harm was resolved by the jury in favor of the defendants, we affirm

without reaching Alvine’s legal question regarding the elements of trespass.

Facts and Procedural History

[¶2.] The Demaray family operated a farm on the property at issue for over

100 years. They raised cattle since 1914. George Demaray lived on the farm until

1983. George had maintained a herd of up to 150 head of cattle. During the winter

months, George moved the cattle from a pasture to a winter confinement area. The

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parties dispute whether the winter confinement area, which is the focus of this suit,

has been moved or enlarged since 1955.

[¶3.] In 1986 or 1987, George rented the property to James Hagemann.

Hagemann began a cattle operation called Hagemann Red Angus. In 2001, Floyd

Demaray (hereinafter “Demaray”) inherited the property from George, and

Demaray continued to rent it to Hagemann. Over the years, Hagemann’s herd grew

from about 60 to 130 head of cattle. According to Hagemann, he kept his cattle in

the same winter confinement area George previously used.

[¶4.] There was no waste collection system for the winter confinement area.

When the ground would begin to thaw each year, Hagemann, like George’s prior

practice, would “scrape” the cattle manure and straw from the winter confinement

area into a compost pile. The compost would remain in the confinement area until

it was spread upon nearby fields where it was tilled into the soil in accordance with

a National Resources Conservation Service developed manure management plan.

[¶5.] In 1973, Frank Alvine, through the Alvine Family Limited

Partnership, purchased 800 acres of adjoining land. This property consisted of

farmland, some federally protected wetlands, and some land in the Conservation

Reserve Program. There was one stock dam on the property. Alvine built a second

dam in 1978 for “wildlife propagation, fish propagation, recreation and stock

watering.” 1 Alvine also used the stock dams for family recreation, including

swimming and boating. Alvine referred to the property as a “wildlife refuge,” and

1. The stock dams were also referred to as small lakes.

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he took steps to encourage wildlife to congregate. Herds of over 200 deer had been

observed, and the stock dams attracted waterfowl as there were two federal

waterfowl production areas nearby. On occasion, the stock dams had been observed

to be “dark with geese.”

[¶6.] The Alvine property lies directly south and downhill from the Demaray

property. The two properties are divided by a gravel township road. Water

naturally drains southward from the Demaray property through a culvert in the

road to the Alvine property and then into inlets that allow water to flow into both

stock dams. The cattle confinement area is located on an incline bordering Alvine’s

property. Alvine alleged that prior to Hagemann’s leasing the land from the

Demarays, the area bordering the two properties had no confinement area and was

an open pasture. Hagemann disputed that assertion and argued that he had not

moved the confinement area from the place previously used by George. Regardless

of this dispute, Hagemann admitted that because of the location and elevation of

the confinement area, runoff from his cattle operation drained southward to the

Alvine property.

[¶7.] In 2001, Alvine experienced excessive aquatic plant growth and a fish

kill in his stock dams. Alvine suspected that the problem was caused by runoff from

the manure generated in Hagemann’s cattle operation. In 2003, Alvine hired an

expert to test the water in his stock dams. Testing of the inlets and stock dams

from 2003 through 2007 revealed substantial levels of fecal coliform and ammonia.

Subsequent testing revealed the presence of E-coli and highly elevated levels of

phosphorus.

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[¶8.] Alvine retained hydrologist, Tim Kenyon, and limnologist, Dick

Osgood. Kenyon opined that runoff from the cattle confinement area was entering

Alvine’s property. Kenyon testified that when he was on the site, he saw fecal

matter flowing into the inlets. Similarly, Osgood opined that Hagemann’s cattle

operation was the source of fecal coliform, phosphorus, and ammonia in Alvine’s

stock dams. Alvine’s experts further opined that elevated phosphorus levels were

causing the weed growth in the stock dams, which resulted in the fish kill. Alvine’s

experts acknowledged, however, that (1) Alvine himself had collected nearly all of

the samples, (2) no baseline testing of the water occurred before 2003, and (3) there

had been no attempts to calculate what portion of any pollutants came from other

agricultural sources within the watershed. Further, Alvine’s experts did not

provide any benchmark levels for fecal coliform, phosphorus, or ammonia, and they

provided no comparative data for other bodies of water in the area.

[¶9.] Alvine contacted Demaray in July 2004 after receiving some of the

results of the testing. Alvine requested Demaray to install a waste containment

lagoon, but Damaray refused. Although Demaray did install two large “buffer

strips” on each side of the winter confinement area to divert runoff, Alvine

contended the buffer strips were ineffective.

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[¶10.] Alvine commenced suit in June 2007. 2 A jury trial was conducted in

March 2009. The defense focused on questions whether other upstream landowners

could have been the source of the pollutants, whether Hagemann “intentionally”

trespassed, and whether Alvine’s stock dams incurred any significant harm as a

result of Hagemann’s activities. Hagemann also contended that Alvine’s “wildlife

refuge,” specifically the large concentrations of geese and deer, were a contributing

cause of Alvine’s problem.

[¶11.] The defendants retained expert Mike Meyer, an environmental

consultant and hydrogeologist. Meyer opined that open-water data was the best

indicator of pollution harm to a body of water. He noted that an open-water sample

taken near geese on Alvine’s stock dam showed a fecal coliform reading of 1260,

while an open-water sample taken only 50 feet away showed a reading of 2. Meyer

also compared the results of Alvine’s and Meyer’s test samples with published data

for waters throughout the State. Meyer opined that the comparison showed the

water quality in Alvine’s stock dams was “very good” and “better than a number of

the lakes in South Dakota.” For example, the chloride levels 3 for Lake Madison, a

popular nearby lake used for public recreation, were considerably higher than

chloride levels in Alvine’s stock dams. Meyer testified:

2. In March 2008, less than a year after the complaint was filed, Hagemann
stopped wintering cattle on Demaray’s land. The winter confinement area
was placed in the Conservation Reserve Program and planted with native
grasses. This use was expected to continue for the next ten years.
Notwithstanding this change of use, Alvine alleged that he would incur
future treatment and remediation costs of $31,400 over the next ten years.

3. Chloride is an indicator of animal and human waste.

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Q: As someone who studies pollution, is there any pollution
harm being caused to the Alvine dams?

A: Well, if you’re – if you use the open-water data, no, there is
no obvious problem.

Q: Alright. And that’s the best indicator?

A: Yes, ideally.

[¶12.] At the close of the evidence, Alvine moved for a directed verdict

(properly termed a motion for judgment as a matter of law, see SDCL 15-6-50(a)) on

the trespass cause of action. The argument Alvine presented to the circuit court

was ambiguous concerning the elements of trespass Alvine believed necessary to

prove that cause of action. The argument can be read to suggest that Alvine was

proceeding on the theory that an intentional physical intrusion was all that was

required to prove the tort. However, the argument can also be read to suggest that

Alvine was proceeding under the theory that the elements of trespass included both

an intentional physical intrusion and causally related harm. Alvine first argued

that the evidence of an intentional physical intrusion of manure established

trespass. Alvine then argued that there was evidence of causally related “harm.”

Following his argument that he had proved causally related harm, Alvine

concluded: “We clearly established the elements of trespass.”

[¶13.] It is not clear from the transcript how the circuit court understood

Alvine’s argument, but the court denied Alvine’s motion. It is, however, clear that

during closing arguments, causally related harm was argued to be an element of

trespass. The defense argued that Alvine’s “whole case [was] premised on harm.”

Counsel for the defendants argued:

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[M]ost importantly, and this is something [Alvine] can’t quarrel
with . . . this whole case is premised on harm. . . . [T]his harm
has never been shown and this transfers through all [of Alvine’s]
complaints. We have never seen that they have ever been
harmed. . . . They have to show he was harmed[.]

[¶14.] It is also clear that the case was submitted to the jury on the theory

that substantial, causally related harm was an element of civil trespass.

Instruction 12 required proof of an intentional entry that was a “substantial factor

in causing” Alvine’s harm. The instruction stated in relevant part:

To establish [civil trespass], Alvine Family Limited Partnership
must prove the following:

(1) Floyd Demaray, Jim Hagemann or Hagemann Red Angus
intentionally caused a thing to enter the land owned by
Alvine Family Limited Partnership or allowed a thing to
remain on the Alvine property that they have a duty to
remove; and

(2) The Defendant’s trespass was a substantial factor in causing
Alvine Limited Partnership’s harm.

(Emphasis added.)

[¶15.] Because the jury returned a unanimous, general verdict for the

defendants on all theories of liability, it did not reach the question of damages.

Alvine subsequently moved for a judgment notwithstanding the verdict (properly

termed a renewed motion for judgment as a matter of law, see SDCL 15-6-50(b)) or

motion for new trial on the trespass cause of action. Alvine was again inconsistent

on his theory of the elements of trespass. Although at one point he mentioned that

harm was not an element of trespass, he did not argue that the motions should be

granted because of instructional error in telling the jury that harm was an element

of trespass. On the contrary, Alvine’s argument assumed that harm was an

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element of trespass. He argued that “for whatever reason [the jury] just did not

follow the law” upon which it had been “instructed,” instructions requiring

substantial, causally related harm.

[¶16.] The circuit court denied Alvine’s motions on “the bases previously

stated at the motion for summary judgment and motion for partial summary

judgment.” In its order denying those motions, the court stated “there [were]

disputed facts precluding a summary judgment ruling on Plaintiff’s trespass claim.”

[¶17.] On appeal, Alvine raises two arguments in support of his contention

that the circuit court erred in denying his renewed motion for judgment as a matter

of law or motion for new trial. Alvine first argues that harm is not an element of

trespass. He then argues that under this theory of trespass, he was entitled to a

judgment as a matter of law because the evidence was undisputed that the

defendants intentionally allowed manure to enter Alvine’s property, irrespective of

disputes regarding harm.

Decision

[¶18.] In reviewing a renewed motion for judgment as a matter of law after

the jury verdict, the evidence is reviewed “in a light most favorable to the verdict or

to the nonmoving party.” Harmon v. Washburn, 2008 SD 42, ¶ 9, 751 NW2d 297,

300. Then, “[w]ithout weighing the evidence, [the court] must decide if there is

evidence which would have supported or did support a verdict.” Id. (citations

omitted). “Only in exceptional cases may the verdict be directed in favor of the

party having the burden of proof.” Id. ¶ 12, 751 NW2d at 301 (citations omitted).

Similarly, a motion for new trial will not be granted if the jury’s verdict can be

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explained with reference to the evidence, and the evidence is viewed in a light most

favorable to the verdict. Itzen v. Wilsey, 440 NW2d 312, 314 (SD 1989). Both the

motion for renewed judgment as a matter of law and the motion for new trial are

reviewed under the abuse of discretion standard. Lord v. Hy-Vee Food Stores, 2006

SD 70, ¶ 25, 720 NW2d 443, 453.

[¶19.] Defendants’ trial evidence raised a number of issues of disputed fact

whether Hagemann’s cattle operation was a substantial factor in causing Alvine

harm. Factual disputes generally prohibit granting a judgment as a matter of law.

Alvine, however, contends that the factual disputes regarding causally related harm

are irrelevant because a trespass upon land occurs by intentional physical intrusion

irrespective of whether the intrusion causes harm. Alvine points out that under the

Restatement:

One is subject to liability to another for trespass, irrespective of
whether he thereby causes harm to any legally protected
interest of the other, if he intentionally

(a) enters land in the possession of the other, or causes a thing
or a third person to do so, or

(b) remains on the land, or

(c) fails to remove from the land a thing which he is under a
duty to remove.

Restatement (Second) of Torts § 158 (1965). Relying on the preamble and

subsection (a), which do not require causally related harm, Alvine argues that he

was at least entitled to a judgment finding that a trespass had occurred because “no

reasonable fact finder could fail to conclude that the defendants placed the cattle

and piled the resulting manure on the property line with knowledge that it would .

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. . result in the entry of the foreign matter onto [ ] Alvine’s land[.]” Alvine further

argues that under South Dakota law, he was entitled to such a judgment even if he

was only entitled to nominal damages. See Bartels v. Anaconda Co., 304 NW2d 108,

110-11 (SD 1981) (concluding that even though the trespassing party may not have

been the cause of damage to another’s property, the landowner was entitled to an

award of nominal damages). Alvine finally relies on other authorities holding or

suggesting that harm is not an element of trespass. 4 Although we have not directly

addressed Alvine’s legal argument regarding the Restatement elements of trespass,

we may not do so here because causally related harm became the law of this case

under Instruction 12, and Alvine failed to argue instructional error in his renewed

motion for judgment as a matter of law or motion for new trial.

[¶20.] As previously noted, the jury was instructed on a theory of trespass

that required the defendants’ “trespass [to be] a substantial factor in causing Alvine

4. Alvine relies on the following cases discussing the Restatement and
concluding that a trespass to land may occur irrespective of causally related
harm: Rushing v. Hooper-McDonald, Inc., 293 Ala 56, 300 So2d 94 (1974);
Dial v. City of O’Fallon, 81 Ill2d 548, 411 NE2d 217 (1980); Ducham v. Tuma,
265 Mont 436, 877 P2d 1002 (1994), overruled on other grounds by Shammel
v. Canyon Res. Corp., 319 Mont 132, 82 P3d 912 (2003); Lambert v.
Holmberg, 271 Neb 443, 712 NW2d 268, 274 (2006); Bradley v. Am. Smelting
and Refining Co., 104 Wash2d 677, 709 P2d 782 (1985).

This Court has referenced the Restatement’s definition in dictum. See
Benson v. State, 2006 SD 8, 710 NW2d 131 (citing Restatement § 158 in
disposing of a tangential assertion in a condemnation case); Gakin v. City of
Rapid City, 2005 SD 68, 698 NW2d 493 (citing Restatement to show that
trespass is a tort not subject to the contract statute of limitations); State v.
Rumpca, 2002 SD 124, 652 NW2d 795, superseded by statute, SDCL 41-9-1(2),
as recognized by Benson v. State, 2006 SD 8, 710 NW2d 131 (citing the
Restatement in considering a statute requiring permission to hunt on private
land).

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Limited Partnership’s harm.” See supra ¶ 14. Although Alvine made a general

objection to Instruction 12, his objection was not sufficient to preserve the issue for

appellate review. Alvine objected to Instruction 12, arguing only that “we don’t

believe it is -- [app]lies the applicable law in this case.” No explanation was given

how the instruction failed to apply the applicable law. This type of nonspecific

objection fails to satisfy SDCL 15-6-51(c)(1), which requires: “A party who objects to

an instruction or the failure to give an instruction must do so on the record, stating

distinctly the matter objected to and the grounds of the objection.” See also Duda v.

Phatty McGees, Inc., 2008 SD 115, ¶ 27, 758 NW2d 754, 762 (“An attorney must be

clear when objecting to jury instructions ‘so the trial court is advised of what

possible errors exist and be granted the opportunity to correct any instructions.’”)

(quoting Parker v. Casa Del Rey-Rapid City, Inc., 2002 SD 29, ¶ 15, 641 NW2d 112,

118) (further citation omitted). Absent a proper objection, we have long held that

the jury instructions become the law of the case. See Zeigler v. Ryan, 65 SD 110,

112, 271 NW 767, 768 (1937) (stating the rule followed in many South Dakota cases

that in the absence of an objection to the court’s instructions, the law set forth in

those instructions becomes “the law of the case”). See also Knutson v. Hess, 1996

SD 137, ¶ 11, 556 NW2d 73, 77 (“[T]he complaining party must have properly

objected to the instruction in order to preserve the issue on appeal, or the improper

instruction becomes the law of the case.” (quoting Wallahan v. Black Hills Elec.

Coop., 523 NW2d 417, 419-20 (SD 1994); State v. Willis, 370 NW2d 193, 200 (SD

1985); Shaull v. Hart, 327 NW2d 50, 53 (SD 1982)). Therefore, because Alvine did

not make a sufficient objection to Instruction 12, Alvine may not argue on appeal a

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different state of the law than that upon which the jury was instructed in

Instruction 12.

[¶21.] Alternatively, even if a proper objection had been made to Instruction

12, Alvine did not argue instructional error in his renewed motion for judgment as a

matter of law or motion for new trial -- the motions that we are reviewing on

appeal. 5 Rather than arguing that Instruction 12, which required causally related

harm, was erroneous, Alvine argued the jury “failed to follow” that instruction.

Because Alvine’s post-trial motions were based on the theory of law contained in

Instruction 12, that instruction was the law of the case and Alvine may not now

raise a different argument on appeal. We have consistently held that this Court

may not review theories argued for the first time on appeal. Boever v. Bd. of

Accountancy, 526 NW2d 747, 750 (SD 1995).

[¶22.] Because Alvine did not preserve his causally related harm arguments

at trial, we must review the evidence under the law of the case that required

causally related harm as an element of trespass. That requires us to review the

record to determine whether there was any evidence upon which a jury could have

found that Alvine failed to meet his burden of proving Hagemann’s cattle operation

was a substantial factor in causing harm to Alvine. The defendants’ evidence on

causally related harm included assertions that: Alvine’s sample collection method

was suspect; there was insufficient baseline data; there was no evidence excluding

other polluting sources in the same watershed; large numbers of wildlife on Alvine’s

5. SDCL 15-6-59(a)(7) specifically contemplates jury instruction error as a
ground for new trial.

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property may have been a contributing source of pollution; chloride levels in Lake

Madison were considerably higher than chloride levels in Alvine’s stock dams; the

water quality in Alvine’s stock dams was “very good” and “better than a number of

the lakes in South Dakota”; and, according to one expert, “there [was] no obvious

problem” of pollution in Alvine’s stock dams. This evidence, when considered in a

light most favorable to the defendants, could have been sufficient for a jury to have

found that Alvine failed to meet his burden of proving that these defendants’ actions

were a substantial factor in causing the harm Alvine alleged.

[¶23.] Because the defendants’ evidence could have supported the jury’s

verdict on the defendants’ theory of causally related harm as set forth in Instruction

12, and because Alvine did not challenge that instruction in his motions for renewed

judgment as a matter of law or new trial, the circuit court did not abuse its

discretion in sustaining the jury verdict. We affirm. 6

[¶24.] GILBERTSON, Chief Justice, and KONENKAMP, and SEVERSON,

Justices, and VON WALD, Circuit Judge, concur.

[¶25.] VON WALD, Circuit Judge, sitting for MEIERHENRY, Justice,

disqualified.

6. By this decision, we express no opinion on the elements of trespass to land
under South Dakota law.

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