Teresa M. Hintze, et al., Appellants,

This opinion is nonprecedential except as provided by
Minn. R. Civ. App. P. 136.01, subd. 1(c).

STATE OF MINNESOTA
IN COURT OF APPEALS
A22-1533

Teresa M. Hintze, et al.,
Appellants,

vs.

Karen A. Hoese, et al.,
Respondents,

Chad Harwood, et al.,
Respondents,

Dale W. Hoese, et al.,
Respondents.

Filed July 10, 2023
Affirmed
Wheelock, Judge

Carver County District Court
File No. 10-CV-20-972

Patrick B. Steinhoff, Thomas F. DeVincke, Malkerson Gunn Martin, LLP, Minneapolis,
Minnesota (for appellants Teresa M. Hintze and John R. Rotter)

Joseph M. Bromeland, Bromeland Law LLC, Mankato, Minnesota; and

John C. Kolb, Rinke Noonan, St. Cloud, Minnesota (for respondents Karen A. Hoese,
Ronald J. Hoese, Delores Hoese, Greg A. Hoese, Bruce W. Hoese, and Judy A. Hoese)

Valerie Sims, Brian W. Varland, Heley, Duncan & Melander, PLLP, Minneapolis,
Minnesota (for respondents Chad Harwood and Heidi M. Harwood)

Michael J. Tomsche, Gabriel V. Wolski, Tomsche, Sonnesyn & Tomsche, PA,
Minneapolis, Minnesota (for respondents Dale W. Hoese and Louise Ann Hoese)

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Considered and decided by Cochran, Presiding Judge; Segal, Chief Judge; and
Wheelock, Judge.
NONPRECEDENTIAL OPINION
WHEELOCK, Judge
Appellants challenge the district court’s summary judgment allowing respondents
to continue to use and repair a drainage system located under appellants’ land, applying
the reasonable-use doctrine in favor of respondents. Appellants argue that (1) the
reasonable-use doctrine does not allow respondents to continue to use the system as a
matter of law and that even if it does, questions of material fact exist that preclude its
application, (2) the district court erroneously employed principles of estoppel to reach its
decision, and (3) the district court improperly granted an easement in favor of respondents
that burdens appellants’ land. Because the district court did not err by applying the
reasonable-use doctrine and granting summary judgment in favor of respondents and its
ordered relief was proper, we affirm.
FACTS
In 2010, appellants Teresa Hintze and John Rotter purchased real property that
Hintze’s parents had previously owned and maintained. 1 When appellants purchased the
property, they did not know that it contains a portion of an underground drainage system
that conveys water to an outlet on the edge of their property near the Crow River. The total

1 At the time of the purchase, the property was held in Hintze’s mother’s trust.
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drainage system traverses several other nearby properties, including properties owned by
respondents.
Several neighboring landowners and the previous owner of appellants’ property—
Hintze’s father Robert Morehouse—orally agreed to install an underground tile drainage
system that would traverse the neighboring properties and discharge onto appellants’
property, believing that the underground drainage system would benefit all of the land
involved, including appellants’ property. A contractor installed the drainage system in
1977 where open ditches had been located. Respondent Ronald Hoese, one of the original
landowners who orally agreed to implement the drainage system, testified at his deposition
that the landowners installed the system to transfer surface water underground and that no
additional water was being added to the system. Hintze, who was familiar with the nature
of the property prior to the system’s installation in 1977 from when she was a child and
young adult, did not recall water naturally flowing or pooling on the property. She also
did not remember observing any ditches or swales on the property.
In December 2020, after water began to pool on their property due to believed issues
with the drainage system, appellants filed a complaint against some of the neighboring
landowners whose properties drain into the system. 2 Appellants alleged claims for
trespass, ejectment, and nuisance and sought a declaratory judgment that they have the
right to remove or cap the drainage system.

2 For unknown reasons, appellants did not name as parties all of the landowners who benefit
from the drainage system.
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An engineer, respondents’ expert witness, investigated the drainage system and the
surrounding properties. 3 He concluded that “the Hoese tile system delivers a similar
quantity of surface water in the same location, but through the underground tile system
instead of over the surfaces of” the connected properties. He disagreed with Hintze’s claim
that the installation of the drainage system on the property in 1977 led to an increase in
water discharging there, instead concluding that the tile system carries the historic water
flow that existed before its installation. He also concluded that removing the underground
tile on appellants’ property would cause problems for all property owners who benefit from
the drainage system because the ditches that previously allowed drainage had been
removed. Finally, the engineer concluded that the drainage system had not caused any
damage to appellants’ property aside from one sinkhole caused by breach of a tile that he
believed would be a simple and inexpensive repair. He recommended that all owners
“collaborate on current and future management of the drainage system to continue its
long-term viability and utility.”
All parties moved for summary judgment. Based on its application of the
reasonable-use doctrine, the district court granted summary judgment in favor of
respondents, denied Hintze’s motion, and ruled that respondents had the right to continue
to use the drainage system on appellants’ property and “ the right, upon notice, to
reasonably enter [appellants’ property] . . . for the limited purposes of inspecting,
maintaining, and repairing the tile drainage system and correcting damages ” if it caused

3 Appellants did not provide any engineering reports or other expert evidence to the district
court.
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any to appellants’ land. It also ordered that appellants and their successors in interest are
estopped from interfering with or obstructing the free discharge of the waters carried by
the drainage system.
Appellants appeal.
DECISION
Appellants challenge the district court’s summary judgment in favor of respondents
and its associated relief. Summary judgment is appropriate if “there is no genuine issue as
to any material fact and the movant is entitled to judgment as a matter of law.” Minn. R.
Civ. P. 56.01. “We view the evidence in the light most favorable to the party against whom
summary judgment was granted.” STAR Ctrs., Inc. v. Faegre & Benson, LLP, 644 N.W.2d
72, 76-77 (Minn. 2002). We review de novo the district court’s application of the law. Id.
at 77.
I. The district court properly applied the reasonable-use doctrine, and no
disputes of material fact preclude summary judgment.

Minnesota law has long recognized the reasonable-use doctrine, which “permits a
property owner to drain surface waters onto another’s land” if the elements of the doctrine
are met. Goerke Fam. P’ship v. Lac Qui Parle-Yellow Bank Watershed Dist., 857 N.W.2d
50, 54 (Minn. App. 2014); see Sheehan v. Flynn, 61 N.W. 462, 466 (Minn. 1894)
(recognizing principles of the doctrine as early as 1894). Under the reasonable-use
doctrine, a landowner may divert surface water to another’s land, even if some of the water
would not naturally have gone to the other’s land, if
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(a) there is a reasonable necessity for such drainage;
(b) reasonable care be taken to avoid unnecessary injury
to the land receiving the burden;
(c) the utility or benefit accruing to the land drained
reasonably outweighs the gravity of the harm resulting to the
land receiving the burden;
(d) 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.

Kral v. Boesch, 557 N.W.2d 597, 599 (Minn. App. 1996) (quotation omitted). “The
reasonable use rule cannot be reduced to a cut-and-dried formula. What is reasonable use
is a fact question to be resolved according to the peculiar facts of each case.” Duevel v.
Jennissen, 352 N.W.2d 93, 96 (Minn. App. 1984).
Appellants argue that the reasonable-use doctrine cannot apply in this case because
appellants’ property does not adjoin respondents’ property and the water discharged from
respondents’ property is no longer surface water once it reaches appellants’ land because
it is conveyed by underground pipes that comprise the drainage system. As to appellants’
first argument, our caselaw does not require that benefited property be adjacent to the
burdened property for the doctrine to apply. Instead, we have held that the doctrine allows
surface water to be drained “onto another’s land.” Goerke, 857 N.W.2d at 54; see also
Wilson v. Ramacher, 352 N.W.2d 389, 393 (Minn. 1984) (“A landowner has the right to
make a reasonable disposition of surface water. This may include diverting water off his
land onto the land of another, as long as the diversion is a reasonable use.”). And as to
appellants’ second argument, they cite no authority holding that water that initially
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qualifies as surface water4 when it enters a drainage system transforms into something else
when it is conveyed onto a burdened property using an underground-pipe system. We have
instead held that surface water retains its character even if it drains underground.
Enderson, 32 N.W.2d at 289 (citing Hartle v. Neighbauer, 172 N.W. 498, 499 (Minn.
1919)).
Caselaw confirms that the application of the reasonable-use doctr ine is not as
narrow as appellants assert. For example, in Evers v. Willaby, 444 N.W.2d 856, 859 (Minn.
App. 1989), we applied the reasonable-use doctrine in a case involving a landowner
connecting his drainage system to an existing tile drainage system near his property, an act
that caused water to drain onto the property of a landowner not adjacent to him. We did
not observe any barrier to applying the doctrine in that case despite the diversion of water
occurring between nonadjacent lands. Id. at 860. The fact that this case involves the
construction of a communal underground drainage system, consented to by appellants’ and
respondents’ predecessors in interest, rather than a landowner connecting to an existing
system does not render the doctrine inapplicable. See Kral, 557 N.W.2d at 599-600 (stating
that the reasonable-use doctrine applies to any “feasible artificial drainage system”);
Kallevig v. Holmgren, 197 N.W.2d 714, 718 (Minn. 1972) (“The diversion of surface water
by tile does not alone take this case out of the [reasonable-use] rule.”).

4 Surface water includes “waters from rain, springs, or melting snow which lie or flow on
the surface of the earth, but which do not form part of a well-defined body of water or
natural watercourse.” Enderson v. Kelehan, 32 N.W.2d 286, 288-89 (Minn. 1948).
8
Our reasoning is further supported by the supreme court’s decision in Will v. Boler,
4 N.W.2d 345 (Minn. 1942). In Will, the defendants obstructed an open ditch that had been
constructed on their land 35 years previously to help manage the flow of surface water
inundating surrounding properties. 4 N.W.2d at 346-47. The supreme court, discussing
the preexisting condition of the land that conveyed the surface waters, stated:
From time immemorial, this draw or depression has been the
means of carrying surface waters. Water undoubtedly created
it. Nature’s hand shaped it. By the aid of man’s efforts it was
improved. The court’s finding cannot be disturbed, since it is
apparent that the ditch constructed along and in the course of
this depression was undertaken by those directly interested in
the project.
Id. at 347. The court repeated the general rule that “[w]here neighboring landowners unite
in the construction of a ditch to drain and improve their several holdings, each of them is
thereafter estopped from closing the ditch in a way to deprive the others of the drainage
provided.” Id. at 348 (quotation omitted).
The same scenario that played out in Will is present here—neighboring landowners
collectively engaged in efforts to improve the preexisting condition of the land that
conveyed the surface waters by installing a system constructed along the course of a
depression that existed from time immemorial, and a dispute has arisen years later due to
an affected landowner’s desire to obstruct and impede the modification to which they or
their predecessors in interest consented. It makes no difference that the landowners in Will
constructed an open ditch rather than installing an underground pipe system as the
landowners in this case did. See Kral, 557 N.W.2d at 599 (applying reasonable-use
doctrine to tile drainage system). The district court correctly applied the reasonable-use
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doctrine to this case, and none of the cases appellants cite support an alternative
conclusion.5
Appellants next argue that even if the reasonable-use doctrine applies to drainage
through an underground drainage pipe conveying water from nonadjacent properties,
material-fact questions exist that preclude summary judgment here. Appellants assert that
fact questions exist regarding whether respondents’ use of the drainage system is
reasonable, specifically as to whether surface water would naturally flow across the
property absent the pipe and whether the pipe benefits or harms appellants’ property.
Although this is a closer call, we do not observe any issues of material fact that would
preclude summary judgment.
A genuine issue of material fact exists if a rational trier of fact, considering the
record as a whole, could find for the nonmoving party. Frieler v. Carlson Mktg. Grp., Inc.,
751 N.W.2d 558, 564 (Minn. 2008). “A fact is material if its resolution will affect the
outcome of a case. ” O ’Malley v. Ulland Bros., 549 N.W.2d 889, 892 (Minn. 1996).
Mere speculation, without concrete evidence, cannot create a fact issue to defeat
summary judgment. Bob Useldinger & Sons, Inc. v. Hangsleben, 505 N.W.2d 323, 328
(Minn. 1993).
The parties each presented their positions, along with exhibits attached to their
motions for summary judgment that they filed with the district court, regarding the flow of

5 Our holding should not be construed to imply that respondents’ use of the drainage system
on appellants’ land is immutably reasonable. We can imagine facts, such as changes in
use, that might lead to a finding that the overall use is not reasonable within the context of
the reasonable-use doctrine.
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water on the property prior to the pipe’s construction in 1977. As noted above, Hintze
asserts that, in the years preceding 1977, she did not observe any water on her parents’
property near the area where the drainage system was installed, and she did not observe
water pooling in other locations on the property. She also asserted that she did not observe
a drainage ditch or swale on the property. The engineer’s expert opinion was that the
natural flow of the surface water of the surrounding properties would traverse appellants’
property and deposit in an area near the current pipe’s outlet next to the Crow River, and
appellants provided no evidence directly contradicting this conclusion. Appellants ’
assertion that the natural topography would not have conveyed the surface water that now
travels through the existing drainage system onto appellants’ land is only speculation and
therefore not sufficient to create a genuine issue of material fact. See id.
Although a jury could find that Hintze’s failure to observe water flowing on the
property prior to the pipe’s installation undermines the engineer’s conclusion, thus creating
a question of disputed fact, it is not material because the reasonable-use doctrine applies
even if “drainage carries with it some waters which would otherwise have never gone that
way.” Kral, 557 N.W.2d at 599. The engineer’s expert report acknowledged that various
factors could affect whether water is present or not present on appellants’ property. And
Hintze’s claim that no natural ditch or swale existed on t he property prior to the pipe ’s
installation is not relevant to the question of reasonable use because the reasonable-use
doctrine does not require that a ditch, swale, or depression be present on land receiving
surface water prior to water being discharged there. See id. (noting that the reasonable-use
doctrine focuses on whether the interference with the surface water is reasonable and no
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one factor or circumstance is controlling). Because the reasonable-use doctrine does n ot
require that all of the water drained onto the burdened property has followed its natural
course so long as the use is reasonable overall, the discrepancy between Hintze’ s
recollection of the property prior to the installation of the drainage system and the
conclusions contained in the engineer’s expert opinion about the natural flow of the
surrounding surface water does not create a question of material fact. We are not persuaded
that a genuine issue of material fact is present here that precluded summary judgment.
Turning to the question of whether appellants’ land is benefited by the drainage
system, we first note that the reasonable-use doctrine does not require a benefit to the
burdened land as appellants seem to suggest. See id. Moreover, appellants again do not
provide any evidence other than subjective speculation. They contend that the land is not
benefited because the pipe has created large pools of standing water and sinkholes on their
property.6 In contrast, the engineer concluded that the land is benefited by the system
because removing it would cause greater pooling due to the natural ditches on appellants’
property being removed after the system’s installation in 1977 and the natural course of
water on the land. Appellants’ subjective opinion about what constitutes a benefit to the
land is not substantial evidence and cannot create a material issue of disputed fact to
challenge the evidence provided by respondents that the system benefits all of the
properties it traverses. See Useldinger, 505 N.W.2d at 328. We conclude that no

6 The engineer concluded that respondents could easily resolve these issues if they were
allowed access to the system to repair it.
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material-fact issues exist as to the benefits and harms of the system as it relates to
appellants’ property that preclude summary judgment.
The district court’s application of the reasonable-use doctrine to the facts of this
case was not error. And because material- fact disputes do not exist, the district court
properly entered summary judgment in favor of respondents.7
II. The district court properly estopped appellants from removing or interfering
with the use or maintenance of the drainage system.

Appellants contend that the district court improperly applied principles of estoppel
when it ordered that “[appellants] and their successors in land [were] estopped from
interfering with or obstructing the free discharge of waters from the tile drainage system.”
Appellants argue that they “cannot be estopped by the actions of their predecessor about
which they knew nothing.” We read the district court’s order “estopping” appellants from
removing or otherwise interfering with the maintenance of the drainage system as the
district court enjoining appellants from taking further action, which is within the district
court’s power. See State ex rel. Swan Lake Area Wildlife Ass’ n v. Nicollet Cnty. Bd. of
Cnty. Comm’rs, 799 N.W.2d 619, 626 (Minn. App. 2011) (stating that a district court has
the power to issue a “negative injunction” that restrains a party’s ability to act). Caselaw
also informs us that estopping a party from interfering with a drainage system permitted
under the reasonable-use doctrine is appropriate.

7 Because we affirm the district court’s summary judgment on this basis, we decline to
address respondents’ argument that appellants’ claims are barred by the statute of
limitations.
13
In Will, after the defendants plowed over and obstructed a ditch that the plaintiffs
had used to drain their lands, the district court ordered that the defendants were “estopped
from obstructing, diverting or interfering with said ditch.” 4 N.W.2d at 347. The supreme
court applied the reasonable-use doctrine and affirmed the district court’s relief, expressly
holding that each of a group of neighboring landowners who had worked together to
construct a drainage ditch was “thereafter estopped from closing the ditch in a way to
deprive the others of the drainage provided.” Id. at 348 (quotation omitted).
Here, the district court’s order that appellants are estopped from removing or
interfering with the drainage system is equivalent to enjoining appellants from doing the
same. Under Minnesota law, the district court is permitted to order that relief to prevent
appellants from interfering with the drainage system. Thus, the district court did not
improperly apply estoppel principles in this case.
III. The district court did not create an easement in favor of respondents burdening
appellants’ land.

Appellants contend that the district court’s order impermissibly granted respondents
a prescriptive easement to access appellants ’ land to inspect, maintain, and repair the
drainage system. We note initially that the district court’s order does not affirmatively
grant an easement in favor of respondents. And appellants cite no authority to support their
argument that the language contained in the district court’s order is sufficient to create a
prescriptive easement, notwithstanding that they bear the burden on appeal to show that
the district court erred. See Loth v. Loth, 35 N.W.2d 542, 546 (Minn. 1949).
14
Caselaw makes clear that application of the reasonable-use doctrine to allow
drainage, whether by natural or artificial means, does not create an easement in favor of
the benefited landowner. In Duenow v. Lindeman, the supreme court stated that
A natural right to drainage of surface waters from upper land
over and across lower land is not man-made in the sense that it
is the result of any act of the landowners, but springs from the
fact that the law has adopted as the rights and duties of the
parties the natural easements and servitudes which nature itself
has imposed upon the lands by placing them in their respective
positions. We recognized the principle here involved in cases
involving a natural right to lateral support as between adjoining
landowners. It is sometimes said . . . that such a natural right
has every essential quality of an ea sement. Generally
speaking, that is true, but a natural right to flowage or drainage
is not a true easement. The authorities generally agree that a
natural right of the kind here involved is different from an
easement. Such natural rights are not easements or
appurtenances, but are part and parcel of the land itself.

27 N.W.2d 421, 427 (Minn. 1947) (citations omitted). Therefore, although the natural
rights associated with drainage systems allowed under the reasonable-use doctrine are
analogous to the rights normally associated with the creation of an easement, application
of the doctrine does not create an easement in favor of the benefited landowner. The district
court appropriately ordered appellants not to obstruct respondents ’ use of the drainage
system on appellants’ land, see Will, 4 N.W.2d at 346-47, and it necessarily follows that
the district court can also order appellants to allow respondents the limited right, after
giving proper notice, to enter appellants’ land to inspect, maintain, and repair the drainage
system to ensure its continued functionality. We observe no error in the district court’s
order in this regard.
Affirmed.