James Aeshliman, et al., Appellants,

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2018).

STATE OF MINNESOTA
IN COURT OF APPEALS
A18-0752

James Aeshliman, et al.,
Appellants,

vs.

Leonard Smisek, Jr., et al.,
Respondents,

Darren Wurm, et al.,
Respondents.

Filed December 24, 2018
Affirmed
Rodenberg, Judge

Wright County District Court
File No. 86-CV-16-2759

Jacob T. Erickson, Patrick M. O’Donnell, Michael J. Patera, Smith, Paulson, O’Donnell &
Erickson, PLC, Monticello, Minnesota (for appellants)

Troy A. Poetz, Christopher A. Wills, Rajkowski Hansmeier, LTD, St. Cloud, Minnesota
(for respondents Leonard Smisek, Jr., and Julie A. Hoff-Smisek)

Gerald W. Von Korff, Kale R. Van Bruggen, Rinke Noonan, St. Clo ud, Minnesota (for
respondents Darren Wurm and Jodey Wurm)

Considered and decided by Rodenberg, Presiding Judge; Hooten, Judge; and
Klaphake, Judge.


 Retired judge of the Minnesota Court of Appeals, serving by app ointment pursuant to
Minn. Const. art. VI, § 10.

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U N P U B L I S H E D O P I N I O N
RODENBERG, Judge
In this appeal following the district court’s grant of summary judgment of dismissal
in a surface-water drainage dispute between neighboring landowners, appellants James and
Simone Aeshliman (Aeshlimans) argue that the district court err ed in (1) dismissing
Aeshlimans’ easement claims under Minn. R. Civ. P. 12.02, (2) d ismissing a necessary
party contrary to Minn. R. Civ. P. 19.01, (3) applying the two-year statute of limitations in
Minn. Stat. § 541.051 (2016) (without equitable tolling) to Aes hlimans’ nuisance claim,
and (4) granting summary judgment dismissing Aeshlimans’ nuisan ce claim despite
genuine issues of material fact. We affirm.
FACTS
Aeshlimans and respondents Leonard Smisek Jr. and Julie A. Hof f-Smisek
(Smiseks) are neighbors in Otsego. Smiseks have owned their property on the east side of
Jaber Avenue since 2002. Aeshlimans purchased their property on the west side of Jaber
Avenue in 2006, with the intention of using at least part of the land to grow hay and alfalfa
for their livestock. A drainage ditch has provided drainage for both properties dating back
to at least the early 1950s. The drainage ditch is designed to move water east from the
Aeshliman property through a sma ll culvert that runs under Jabe r Avenue (Jaber Avenue
culvert). The ditch then contin ues northward across the proper ty of respondents Darren
and Jodie Wurm (Wurms), through a culvert under Smiseks’ driveway (driveway culvert),
and joins a different ditch that eventually flows to the Mississippi River.

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When Aeshlimans moved onto their property, they used their lan d for pasture
because it was too wet to grow or bale hay. Aeshlimans noticed that their acreage
i m m e d i a t e l y w e s t o f J a b e r A v e n u e b e c a m e i n c r e a s i n g l y w e t a n d m uddy over time,
rendering the fields unusable for crop production or even pastureland. While the footprint
of the wetland has not been altere d, the amount of water in the wetland has increased.
Aeshlimans began investigating the cause of the increased water in the wetland on their
property. Smisek told Aeshliman that the Jaber Avenue culvert was the cause of the water
problems. 1 At Aeshliman’s request, the Township of Monticello replaced the culvert under
Jaber Avenue in 2011 or 2012, in an attempt to ameliorate the w ater problems on the
Aeshliman property, but this attempt was to no avail.
In 2012, Aeshliman discovered th at Smisek had placed a structur e in the drainage
ditch on Smiseks’ property. Specifically, Smisek placed a tube through cement, which was
held down with concrete blocks, a t the bottom of the north side of the driveway culvert.
According to Smisek, this struct ure was placed sometime between 2004 and 2007. The
parties disagree on the purpose of this structure, but Smisek claims it was to prevent beavers
from dam building. Aeshliman was able to convince Smisek to re move the structure
sometime in 2012 or 2013. Aeshliman claims that the water on h is property dried
sufficiently that summer as to allow the previously flooded areas to be prepared for planting
crops.

1 All references to “Smisek” refer to Leonard Smisek Jr. and all references to “Aeshliman”
refer to James Aeshliman.

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In August 2014, when Aeshliman asked Smisek about recurring wa ter problems,
Smisek denied having put another s tructure in the ditch and con tinued to blame the Jaber
Avenue culvert. Aeshliman located a second structure on the so uth side of the driveway
culvert, which Smisek referred to as a retaining wall consistin g of around 60 concrete
blocks. Smisek hired a commercial entity to remove this second structure and dredge the
drainage ditch in 2015. This did not result in any decrease in water on the Aeshliman
property.
Aeshlimans asserted that a thir d structure was created as the result of the company
that had dredged the drainage ditch having failed to take prope r precautions regarding
siltation. In September of 2015, Aeshliman noticed wooden stakes placed in the drainage
ditch near the Jaber Avenue culvert where the ditch had been dredged. Aeshlimans assert
that Smisek placed the wooden stakes in the drainage ditch to build up debris and create an
earthen dam so that Smisek could trap beavers. Smisek maintains that the purpose of these
stakes was to keep cattails and vegetation from clogging the driveway culvert and improve
water flow. Smisek removed the wooden stakes in 2016 when he w as advised that the
stakes may be blocking the flow of water. As with the earlier efforts, this did not change
the level of water on Aeshlimans’ property.
Aeshlimans commenced this acti on on May 25, 2016, seeking dama ges from
Smiseks resulting from negligence and nuisance, and injunctive relief under various
implied-easement theories. Aesh limans sued Wurms because, they claimed, complete
relief cannot be grated in the absence of Wurms as parties to t he case. Aeshlimans later
amended their complaint to assert six causes of action against Smiseks. Aeshlimans

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asserted that the three properties were governed by unwritten e asements of unspecified
terms, and that Smisek was viol ating the easements by attemptin g to dam the draina ge
ditch. Aeshlimans asserted theor ies of easement by implication , by prescription, and by
estoppel. The amended complaint also asserted causes of action for nuisance, negligence,
and for other injunctive relief. Respondents collectively moved to dismiss under Minn. R.
Civ. P. 12.02(e), for failure to state a claim upon which relief can be granted.
The district court dismissed all of Aeshlimans’ claims against Wurms but allowed
the reasonable-use nuisance claim to proceed against Smiseks. The district court
determined that the amended complaint failed to sufficiently allege the required elements
for each of the asserted bases for Aeshlimans’ claim of an ease ment. The district court
dismissed Aeshlimans’ nuisance and negligence claims as to Wurm s, because the
complaint alleged neither that the Wurms engaged in any wrongdoing nor that they did or
failed to do anything that caused any harm. The district court dismissed Aeshlimans’
negligence claim against Smiseks because Aeshlimans failed to allege that Smiseks owed
Aeshlimans any duty of care.
After completion of discovery, Smiseks moved for summary judgment. Both parties
retained experts, but only Smisek s filed their expert’s report with the district court.
Accordingly, the district court had only the opinion of Smiseks ’ expert, Dr. Joel Toso,
concerning the cause of Aeshlimans’ water problems. Aeshlimans submitted no contrary
expert evidence, but Dr. Toso was in agreement with at least so me parts of the report of
Aeshlimans’ expert. Dr. Toso’s report provides three critical undisputed facts. First, the
area about which Aeshlimans are complaining is a natural wetland—there is no claim and

6
nothing in the record to support that any person created the we tland conditions. Second,
the invert of the downstream driveway culvert “is significantly higher than the upstream
culvert draining the Aeshliman property.” Third, those two und isputed facts are coupled
with the apparent prior existence of a drainage-tile system that once ran through the Smisek
property and that no longer functions.
Smiseks moved for summary judgment dismissing Aeshlimans’ remai ning claims
as time-barred by Minn. Stat. § 541.051 (2016), 2 because the claims were first asserted
more than two years after Aeshlimans discovered injury to real or personal property
allegedly caused by a defective and unsafe condition of an impr ovement to real property.
The district court granted summary judgment in favor of Smiseks , concluding that
Aeshlimans’ claims were time-barred.
This appeal followed.
D E C I S I O N
I. The district court properly dismissed Aeshlimans’ easement c laims.

Aeschlimans challenge the dist rict court’s summary judgment di smissing their
claims of: (1) easement by implication; (2) easement by prescription; and (3) easement by
estoppel. “A Rule 12.02 motion to dismiss for failure to state a claim upon which relief
can be granted will be denied ‘if it is possible on any evidenc e which might be produced,

2 In 2018, the legislature amended Minn. Stat. § 541.051, subd. 1. See 2018 Minn. Laws
ch. 116 § 1 (adjusting when the statute of limitations begins to run). Because the changes
to this statute became effective May 9, 2018, and “applies to causes of action accruing on
or after that date,” id., and because the district court dismissed appellants’ complain t as
being barred by the statute of limitations before May 9, 2018, we review the district court’s
decision under the former statute.

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consistent with the pleader’s theory, to grant the relief demanded.’” N. States Power Co. v.
Minn. Metro. Council, 684 N.W.2d 485, 490 (Minn. 2004) (quoting N. States Power Co.
v. Franklin, 122 N.W.2d 26, 29 (Minn. 1963)). “We review de novo whether a complaint
sets forth a legally sufficient claim for relief.” Walsh v. U.S. Bank, N.A., 851 N.W.2d 598,
606 (Minn. 2014).
Aeshlimans alleged two alternative theories: first, that the drainage ditch is a natural
watercourse; and, second, that the ditch was created by one or more predecessors in title to
the parties. In dismissing Aeshlimans’ easement claims, the district court cited Duenow v.
Linderman for the proposition that a natural right to flowage is not a tr ue easement. 27
N.W.2d 421 (Minn. 1947). Aeshlimans argue that the portion of Duenow on which the
district court relied was dicta. We agree that the supreme cou rt’s water-rights analysis in
Duenow was dicta because it was not str ictly necessary to reverse an order on procedural
grounds. Id. at 427-29. See Jaeger v. Palladium Holdings, LLC , 884 N.W.2d 601, 611
(Minn. 2016) (“Of course, a ruling not necessary to the decision of a case can be regarded
as only dictum.” (quoting State v. Rainer, 103 N.W.2d 389, 396 (Minn. 1960))). But the
analysis in Duenow should not be lightly disregarded solely on the basis that it is dicta.
Dictum can be either obiter dictum or judicial dictum, depending on how involved
the parties’ arguments and the court’s analysis are. Rainer, 103 N.W.2d at 396. Black’s
Law Dictionary defines obiter dictum as “[a] judicial comment made while deli vering a
judicial opinion, but one that is unnecessary to the decision i n the case and therefore not
precedential (although it may be considered persuasive).” Black’s Law Dictionary 1240
(10th ed. 2014). Judicial dictum, on the other hand, is a cour t’s “opinion on a question

8
directly involved and argued by c ounsel though not entirely nec essary to the decision.”
Rainer, 103 N.W.2d at 395-96. Because it comes from deeper analysis, judicial dictum is
“entitled to much greater weight tha n mere obiter dictum and sh ould not be lightly
disregarded.” Id. at 396. In Duenow, the supreme court discussed in depth that a natural
right to flowage or drainage is not a true easement and provide d judicial dictum that
“should not be lightly disregarded.” Id.; Duenow, 27 N.W.2d at 427-29. Nevertheless, and
even if we were to disregard the language in Duenow, Aeshlimans’ implied-easement
claims would not have survived the motion to dismiss.
The district court did not rely solely on Duenow, and other cases support the same
underlying line of reasoning to the rule of law that the natura l drainage of water is not a
true easement. See, e.g. , Collins v. Wickland , 88 N.W.2d 83, 87-88 (Minn. 1958).
Minnesota follows the rule of reasonable use with regard to div ersion or obstruction of
surface water. Enderson v. Kelehan, 32 N.W.2d 286, 289 (Minn. 1948). Each possessor
of land “is legally privileged to make a reasonable use of his land, even though the flow of
surface waters is altered thereby and causes some harm to other s.” Collins, 88 N.W.2d at
88. In other words, the right to convey surface waters is an attribute of property ownership
and no reasonable-use easement is implied, or need be implied, any more than an easement
need be implied for an owner of property to breathe the air on his or her land.
Aeshlimans’ easement claims far e no better on their alternative theory that the
drainage ditch was created by one or more predecessors in title to the parties to this action
or by modification of the natural watercourse.

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The factors to be considered in assessing the existence of an implied easement or
easement by implications of necessity are: (a) a separation of title; (b) the use which gives
rise to the easement shall have been so long continued and apparent as to show that it was
intended to be permanent; and (c) the easement is necessary to the beneficial enjoyment of
the land granted. Romanchuk v. Plotkin, 9 N.W.2d 421, 424 (Minn. 1943). Aeshlimans
argued to the district court that the drainage ditch is a natural watercourse, but as previously
mentioned, the natural right to flowage or drainage is not a tr ue easement. Duenow, 27
N.W.2d at 427. Aeshlimans’ complaint does not allege that the involved properties ever
had a common owner. It also does not allege that, if there was a common owner, there was
a necessity of an easement at t he time of severance. Consequen tly, there can be no
easement by implication even if we assume all facts in the amen ded complaint to be true
and make every inference in favor of the Aeshlimans.
The district court also properl y dismissed Aeshlimans’ prescriptive-easement claim.
“A prescriptive easement claimant must prove by clear and convi ncing evidence that the
property for which she is requesting the easement was used in an actual, open, continuous,
exclusive, and hostile manner for 15 years.” Boldt v. Roth, 618 N.W.2d 393, 396 (Minn.
2000) (quotation omitted). “The natural drainage of surface wa ters from the lands of an
upper owner across those of a lower owner lacks all elements of prescriptive right,
regardless of its duration.” Duenow, 27 N.W.2d at 428; see Kral v. Boesch, 557 N.W.2d
597, 600 (Minn. App. 1996) (stating that “the basis for prescri ptive easements does not
apply to surface water”). There is nothing in the amended comp laint to suggest that
Aeshlimans (or their predecessor in interest) were draining water from their property onto

10
the Smisek property in a hostile or wrongful manner. Aeshlimans’ complaint fails to allege
facts sufficient to entitle Aeshlimans to a prescriptive easement.
Aeshlimans also asserted a claim of easement by estoppel. “Wh ere neighboring
landowners unite in the construction of a ditch to drain and im prove their several [lands,]
each of them is thereafter estopped from closing the ditch in a way to deprive the others of
the drainage provided.” Will v. Boler , 4 N.W.2d 345, 348 (Minn. 1942). Will was not
decided based on an easement theory. In Will, the supreme court concluded that the
defendant was estopped from clos ing a ditch because the parties ’ previous expansion of
drainage was a joint project tha t benefitted both parties and t he modification violated the
reasonable-use doctrine. Id. at 347-48. The test was, and remains, reasonable use—the
term “easement” does not appear in the Will opinion.
Assuming that Aeshlimans prove every fact in the amended compla int, they still
cannot prevail on a claim of easement by estoppel. The amended complaint states that “the
predecessors to the parties in this case constructed and paid for, by voluntary contributions
of the owners of the lands benefitted, to dig, enlarge or otherwise improve the subject ditch
from the Aeshliman property across the Wurm and Smisek properties.” But as the district
court noted, “[t]he absence of any general factual averments as to the time frame, or who
engaged in the joint enterprise, or whether the problem with wa terflow is even related to
the joint enterprise, makes the allegations insufficient even if all are true.” We agree with
the district court that Aeshlimans’ bald assertion is insuffici ent to survive a motion to
dismiss. See Hebert v. City of Fifty Lakes , 744 N.W.2d 226, 235 (Minn. 2008) (“We are

11
not bound by legal conclusions sta ted in a complaint when deter mining whether the
complaint survives a motion to dismiss for failure to state a claim.”).
The district court properly dismissed the easement claims asser ted in Aeshlimans’
amended complaint.3
II. The district court did not e rr by dismissing Wurms from the action.

Aeshlimans argue that the district court erred by dismissing th eir claims against
Wurms, because Wurms are a necessary party under Minn. R. Civ. P. 19.01. The rule
provides, in relevant part, that:
A person who is subject to service of process shall be
joined as a party in the action if (a) in the person’s absence
complete relief cannot be accorded among those already
parties . . . . If the person has not been so joined, the court shall
order that the person be made a party. If the person should join
as a plaintiff but refuses to do so, the person may be made a
defendant, or, in a proper case, an involuntary plaintiff.

Minn. R. Civ. P. 19.01.
Aeshlimans argue that complete relief cannot be granted in the absence of the
Wurms, because Smiseks would hav e to clear a portion of the dit ch on Wurm’s property
should Aeshlimans ultimately pr evail. But Aeshlimans have asse rted no cause of action
against Wurms. Minn. R. Civ. P. 19 does not create a cause of action, nor is it designed to
prevent dismissal of parties from a lawsuit for failure to state a claim upon which relief can

3 Aeshlimans now argue on appeal that there exists an express ea sement that may be
relevant to the issues. That issue was neither pleaded nor pre sented to the district court.
We therefore do not address either whether there is such an easement or, if there is such an
easement, what significance it might have to Aeshlimans’ continued complaints of excess
water.

12
be granted where, as here, no cause of action is asserted again st the party claimed to be
necessary. Minn. R. Civ. P. 19.01. The district court properly dismissed Wurms from the
action.
III. The district court correctly determined that the two-year statute of limitations
set forth in Minn. Stat. § 541.051 applies.

We note at the outset of our period-of-limitations discussion that we analyze the
applicability of Minn. Stat. § 541 .051 and measure the period o f limitations only with
regard to the first and second “structures” placed by Smisek. We do this for three reasons.
First, Aeshlimans did not argue to the district court at the summary-judgment stage that the
third structure would extend t he applicable statute of limitati ons. Aeshlimans argued to
the district court in opposition to Smiseks’ motion for summary judgment that the water
on their property was not abating after the ditch was dredged b ut before the stakes were
placed. We “generally consider only those issues that the record shows were presented to
and considered by the [district] court in deciding the matter before it.” See Thiele v. Stich,
425 N.W.2d 580, 582 (Minn. 1988) (quotation omitted). Second, there is no evidence in
the record that the stakes placed by Smisek after the 2015 dred ging caused any flooding;
the most that can be said on this record is that the stakes wer e an ineffective attempt by
Smisek to ameliorate an alrea dy-existing problem, according to the only expert report in
the record. Third, Aeshlimans assert that this third “structure” was formed by the company
that dredged the ditch. To the extent that there might be a claim for damage after and as a
result of the dredging—and there does not appear to be any such viable claim—it would

13
have to be asserted against, or at least include, the dredging company. See Minn. R. Civ.
P. 19.
Aeshlimans argue that the district court erred in applying the two-year statute of
limitations under Minn. Stat. § 541.051, subd. 1. The statute provides:
(a) Except where fraud is involved, no action by any person in
contract, tort, or otherwise to recover damages for any injury
to property, real or personal, or for bodily injury or wrongful
death, arising out of the defective and unsafe condition of an
improvement to real property, shall be brought against any
person performing or furnishing the design, planning,
supervision, materials, or observation of construction or
construction in the improvement to real property against the
owner of the real property more than two years after discovery
of the injury, nor in any event shall such a cause of action
accrue more than ten years after substantial completion of the
construction.

Minn. Stat. § 514.051, subd. 1(a).
The statute applies to claims: (1) of damages to real or personal property; (2) arising
out of a defective and unsafe condition; (3) of an improvement to real property; (4) more
than two years after discovery of injury or ten years after completion of construction. The
statute of limitations is an affirmative defense, and Smiseks have the burden of establishing
that the statute applies. State Farm Fire & Cas. v. Aquila, Inc. , 718 N.W.2d 879, 883-85
(Minn. 2006). We review the c onstruction and applicability of statutes of limitations de
novo. Id. at 885.
Viewing the evidence in the light most favorable to Aeshlimans , the structures
placed in the ditch by Smiseks c aused flooding to Aeshlimans’ p roperty, resulting in
damages from a defective and unsafe condition created by Smiseks.

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The third element that must be met for the statute of limitati ons to apply is that the
defective and unsafe condition must be an improvement to real property. Aeshlimans argue
that the placement of things in the ditch are not improvements.
Courts apply a “common-sense interpretation” of the phrase “imp rovement to real
property.” Siewert v. N. States Power Co., 793 N.W.2d 272, 286 (Minn. 2011) (quotation
omitted). In determining whether there is “an improvement to r eal property,” courts
examine three factors: (1) whe ther the addition or betterment is permanent; (2) whether
capital value is enhanced; and (3) whether the thing in questio n is designed to make the
property more useful or valuable, rather than intended to resto re the property’s previous
usefulness or value. Id. at 287.4

4 Minnesota courts have concluded that a variety of improvements to real property fall
under Minn. Stat. § 541.051. See Aquila, 718 N.W.2d at 884 (natural-gas pipeline system);
Olmanson v. LeSueur County , 693 N.W.2d 876, 880 (Minn. 2005) (golf-cart culvert);
Sartori v. Harnischfeger Corp., 432 N.W.2d 448, 452 (Minn. 1988) (crane with structures
surrounding it); Bulau v. Hector Plumbing & Heating Co., 402 N.W.2d 528, 529-30 (Minn.
1987) (fireplace), superseded by statute , Minn. Stat. § 541.051, subd. 1 (1988);
Frederickson v. Alton M. Johnson Co. , 402 N.W.2d 794, 796-97 (Minn. 1987) (electrical
system); Ocel v. City of Eagan , 402 N.W.2d 531, 533-34 (Minn. 1987) (storm sewer
system); Allianz Ins. Co. v. PM Serv s. of Eden Prairie, Inc ., 691 N.W.2d 79, 84 (Minn.
App. 2005) (water-purification systems); Red Wing Motel Inv’rs v. Red Wing Fire Dep’t,
552 N.W.2d 295, 297 (Minn. App. 1996) (sprinkler system), review denied (Minn. Oct. 29,
1996); Kline v. Doughboy Recreational Mfg. Co., 495 N.W.2d 435, 438 (Minn. App. 1993)
(above-ground outdoor swimming pool); Patton v. Yarrington , 472 N.W.2d 157, 160
(Minn. App. 1991) (smoke detector), review denied (Minn. Aug. 29, 1991); Citizens Sec.
Mut. Ins. Co. of Red Wi ng v. Gen. Elec. Corp. , 394 N.W.2d 167, 170 (Minn. App. 1986)
(light fixtures and ballasts), review denied (Minn. Nov. 26, 1986); see also Henry v. Raynor
Mfg. Co. , 753 F. Supp. 278, 282 (D. Minn. 1990) (garage-door opener); Siewert, 793
N.W.2d at 287 (noting that when alleged real-property improveme nt was electrical
distribution system, “[u]tilities and similar installations hav e generally been considered
real property improvements.”).

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Aeshlimans argue that the structures placed by Smisek were not permanent, citing
Taney v. Indep. Sch. Dist. No. 624, where we stated, “in order for an improvement to be a
permanent addition to or betterment of real property, it must be integral to and incorporated
into the building or structure on the property.” 673 N.W.2d 49 7, 504 (Minn. App. 2004)
(quotation omitted). Since Taney wa s de c i de d, we ha ve n ot e xp r e s s l y r e qu i r e d t ha t a n
improvement to real property be i ntegral to the building or str ucture. See Kline , 495
N.W.2d at 438-39 (implicitly rejecting any requirement that an alleged home improvement
must be integral by concluding that an above-ground swimming pool was an improvement
to real property without any indication that the pool was integral to the home or property).
Here, the first structure was cemented by Smisek into the ditc h, and included patio
blocks stacked on the top of a d rainage tube. The second struc ture consisted of roughly
sixty concrete blocks that spanned the entirety of the drainage ditch and required an
excavation company to remove. Aes hlimans argue that the struct ures were not
“permanent,” because they were removed. But “[t]he test is not whether something can be
moved, but whether it meets the definition of improvement to re al property.” Kline, 495
N.W.2d at 438; cf. Massie v. City of Duluth , 425 N.W.2d 858, 861 (Minn. App. 1988)
(concluding that water slide was not real-property improvement or permanent despite being
bolted to concrete pads at the bottom of the pond because it was designed to be—and was—
removed every winter for storage). We conclude that the struct ures were permanent.
Neither of these two structures were designed to be removed. T o the contrary, Smisek’s
efforts were designed to make the structures immovable.

16
Aeshlimans argue that the structures did not increase or enhan ce capital value of the
property because they were illega l and did not comply with the drainage easement. We
disagree. First, and as discussed, Aeshlimans have not demonst rated entitlement to an
easement with which Smisek might have unlawfully or wrongfully interfered. The
structures mitigated the amount of water on the Smisek property , thus enhancing capital
value.
Aeshlimans argue that the structures were not an improvement t o real property
because, under Siewert, a structure is an improvement to real property if “it is designed to
make the real property more useful or valuable, rather than int ended to restore the
property’s previous usefulness or value.” 793 N.W.2d at 287. In Matter v. Nelson , we
concluded that construction of a drainage swale was an improvem ent to real property,
where the swale was an additional component of the drainage dit ch, because it was
designed to address the problem of water discharge. 478 N.W.2d 211, 213 (Minn. App.
1991). The present scenario is analogous to Matter, which governs here. The structures
were an improvement to real property.
Alternatively, Aeshlimans contend that placing the structures i n the drainage ditch
was maintenance of the real-property improvement, i.e. the drai nage ditch. Minn. Stat.
§ 541.051, subd. 1(d), provides that “[n]othing in this section shall apply to actions for
damages resulting from the negligence in the maintenance, opera tion or inspection of the
real property improvement against the owner or other person in possession.” Minn. Stat.
§ 541.051, subd. 1(d). Aeshlimans’ argument—that Smisek was negligent in maintaining
the drainage ditch because the structures he placed within it caused flooding—fails. There

17
is nothing in the record to suggest that Smisek was negligent in maintaining the structures
once they were placed in the dra inage ditch. As discussed, the scenario here is akin to
Matter where we determined that the swale constructed by the defendants within a drainage
system, which resulted in flooding, was an improvement to real property rather than
negligent maintenance of the drainage system. 478 N.W.2d at 213.
IV. The two-year statute of lim itations bars this action.

Aeshlimans began investigating their water problems in 2010. They were
undoubtedly aware of their damag es in 2010 and 2011, when Aeshl imans claim to have
experienced nearly complete flooding and standing water. Aeshlimans memorialized their
injuries and damages, and their belief that Smiseks were respon sible, in a September 9,
2013 email to R.W., an Ostego city engineer. Aeshlimans stated that they had been in
contact with R.W. over the years concerning drainage issues, and that those issues had not
been resolved and were “becoming a financial burden.” Aeshlimans also stated in the email
that they had called the city about Smisek having installed str uctures within the drainage
ditch, which may have been removed. The email states, “I think he may be blocking the
culvert under his driveway on the south side now rather than the north.” Accordingly, the
statute of limitations began to run on claims for damage caused by the real-property
improvement, at the latest, on September 9, 2013. Aeshlimans sued Smiseks on May 26,
2016. Minn. Stat. § 541.051 applies to bar the late-commenced action.
Aeshlimans also argue that the fraud exception to Minn. Stat. § 541.051 applies and
tolls the statute of limitations and that, as a result, the two -year statute of limitations (if

18
applicable) did not begin to run until Aeshlimans discovered the second structure in 2014.
This argument is without merit.
In City of Willmar v. Short-Elliott-Hendrickson, Inc., the Minnesota Supreme Court
held that the two-year statute of limitations for an action arising out of an improvement to
real property begins to run when the injury is discovered . 475 N.W.2d 73, 76-77 (Minn.
1991) (stating that 1988 amendment to section 541.051 “effectively overruled [Wittmer v.
Reugemer] by establishing the discovery of an injury, rather than a defective condition, as
the point at which the limitati on period begins to run”). Assu ming, as we must in this
procedural posture, that Smisek made fraudulent statements to A eshliman, any such
statements would not toll the tw o-year limitation period becaus e Aeshliman knew of the
injury by September 9, 2013. Fraud would toll the statute only if it prevented discovery of
the injury within the limitation period and the injury could no t have been otherwise
discovered through re asonable diligence. See Dakota v. BWBR Architects , 645 N.W.2d
487, 494 (Minn. App. 2002) (stating that fraudulent concealment is relevant only insofar
as it prevented the plaintiff fro m learning of the injury; once plaintiff discovered an
actionable injury, fraudulent concealment no longer tolled the statute of limitations), review
denied (Minn. Aug. 20, 2002).
Aeshlimans similarly argue tha t the statute of limitations should be equitably tolled
because of Smisek’s misrepresenta tions about, and concealment o f, the structures. Any
such tolling argument must rest on evidence of reliance on the claimed misrepresentations.
See Oreck v. Harvey Homes, Inc. , 602 N.W.2d 424, 429 (Minn. App. 1999) (upholding
grant of summary judgment on the statute of limitations because equitable tolling could not

19
apply when defendant consistently denied any responsibility for the air and water leakage
and made no promises to repair the problems), review denied (Minn. Jan. 25, 2000).
Aeshlimans have made no showing—nor even a claim—of reliance on misrepresentations
of Smiseks.
Aeshlimans argue on appeal that a six-year limitation period a pplies under Minn.
Stat. § 541.05, subd. 1(8) (2018). That rule provides, “[e]xce pt where the Uniform
Commercial Code otherwise prescribes, the following actions shall be commenced within
six years: . . . (8) for damages caused by a dam, used for commercial purpose.” Minn. Stat.
§ 541.05, subd. 1(8). Smiseks reply that Aeshlimans are preclu ded from raising this
argument because they failed to raise it at the district court. It is true that Aeshlimans
argued at the district court that the two-year statute of limit ation is not applicable, but did
not specifically argue or suggest that an alternative statute o f limitations applies. But we
agree with Aeshlimans that it is not their burden to identify a n alternative statute of
limitations. The statute-of-limitations burden is on the party asserting the time bar. Aquila,
718 N.W.2d at 885.
Although Aeshlimans have, at various points, identified the Smi sek structures as a
“dam,” the only expert opinion of record described no “damming” effect occasioned by
Smiseks, much less the existence of “a dam used for commercial purposes.” Minn. Stat.
§ 541.05 could not apply on this record. The six-year statute of limitations for commercial
dams has no application here. And, as discussed, the period of limitations defined by Minn.
Stat. § 541.051 applies.

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In sum, we agree with the district court that Smiseks met their burden to prove that
the two-year statute of limitations under Minn. Stat. § 541.051 is applicable. Therefore,
Aeshlimans’ claims for damages are time-barred.5
V. There are no genuine issues o f material fact precluding summary judgment.

“The court shall grant summary judgment if the movant shows th a t t h e r e i s n o
genuine issue as to any material fact and that the movant is entitled to judgment as a matter
of law.”6 Minn. R. Civ. P. 56.01. Aeshlimans argue that the district court improperly made
two findings of fact. First, Aeshlimans argue that the distric t court improperly found that
structure three was removed and had no impact on the water level on Aeshlimans’ property.
Aeshlimans argue that it remains a material fact question conce rning whether Smisek
created a third structure consis ting of a mat of silt and veget ation that remains in the
drainage ditch and prevents water flow. Second, Aeshlimans con tend the district court
erred by finding:

5 We observe that Minn. Stat. § 541.051 applies only to claims for damages and would not
bar Aeshlimans’ claim for injunc tive relief as a remedy to thei r reasonable-use nuisance
claim. But Aeshlimans have not argued on appeal that the distr ict court improperly
dismissed their claim for injunctive relief; the only challenge on appeal is to dismissal of
their easement and damages claims.

6 The district court applied the former version of rule 56, whic h was recently “revamped”
to more “closely follow” the amendments to the federal rules. Minn. R. Civ. P. 56 2018
advisory comm. cmt. When promulgating amendments to rule 56, e ffective on July 1,
2018, and applicable to pending cases, the supreme court specif ically indicated that
amended language on the standard for granting summary judgment reflects Minnesota
caselaw. Order Promulgating Amendments to the Rules of Civil Procedure, No. ADM04-
8001 (Minn. Mar. 13, 2018). Because the legal standard is unch anged, we cite to the
current version of rule 56.01, even though the district court’s decision was issued before
the amended rule took effect.

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it appears [both parties’] experts agree on the water problem
being caused by two factors: 1) the invert of the culvert
downstream of [Smiseks’ property] is significantly higher than
the invert of the upstream culvert draining [Aeshlimans’]
property; and 2) the ditch is heavily choked with thick
vegetation, specifically mats of cattails . . . the second problem
is not generated by [Smiseks]. (There is no evidence they
planted cattails, for instance.)

Aeshlimans argue that this finding is inconsistent with the portion of Smiseks’ expert report
t h a t s t a t e d , “ [ S m i s e k ] h a s t r i e d t o k e e p t h e s e m a t s a w a y f r o m the culvert to maintain
drainage, but the result tends to be a thicker mat of vegetation or a ‘dam.’”
Contrary to Aeshlimans’ assertion, there is no genuine issue o f material fact as to
whether a third “structure” caused Aeshlimans’ water problems. The only expert report of
record concludes that Aeshlimans’ water problems are not caused by anything being done
by Smisek. Aeshlimans acknowledge that the water on their property was not abating after
the drainage ditch had been dredged, which was before Smisek pl aced stakes in the ditch.
Insofar as Dr. Toso’s report indicates that Smisek’s conduct re sulted in a thicker mat of
vegetation, the report, read in its entirety, establishes that this third “structure” of
vegetation is not the cause of Aeshlimans’ water problems. The downstream driveway
culvert is at a higher elevation than the upstream Jaber Avenue culvert, and the tile system
that may once have drained additional surface water no longer f unctions for reasons
unrelated to anything Smiseks are claimed to have done. To the extent that the district
court made any finding of fact on this record, it is that water does not flow uphill.
The district court did not impr operly find facts in granting s ummary judgment. It
was faced with claims that Smise k placed obstructions that cons titute permanent

22
improvements within the ditch before 2013 that aggravated the i nability of water to drain
through a culvert that was higher in elevation than the culvert that drains Aeshlimans’
naturally wet property. This action was commenced on May 25, 2016, more than two years
after Aeshlimans were aware of some damage that they claim was caused by Smisek. The
district court properly dismissed Aeshlimans’ damage claims.
Affirmed.