This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2014).

STATE OF MINNESOTA

IN COURT OF APPEALS

A15-0322

Carol Quinn, et al.,

Appellants,

vs.

William G. Johnson, et al.,

Respondents.

Filed August 24, 2015

Reversed

Kirk, Judge

Beltrami County District Court

File No. 04-CV-14-941

Jeremy A. Klinger, Drahos Kieson & Christopher, P.A., Bemidji, Minnesota (for 

appellants)

Kevin F. Gray, Christopher A. Wills, Rajkowski Hansmeier Ltd., St. Cloud, Minnesota 

(for respondents)

Considered and decided by Kirk, Presiding Judge; Rodenberg, Judge; and Chutich, 

Judge. 

U N P U B L I S H E D O P I N I O N

KIRK, Judge

Appellants challenge the district court’s summary judgment dismissal of its

continuing trespass claim arguing that the court erred by determining that their claim is
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barred by the two-year statute-of-limitations provision in Minn. Stat. § 541.051, subd. 

1(a) (2014). Respondents’ house, mound system, and driveway incidentally diverted the 

flow of surface water onto appellants’ property. Because the record does not contain 

evidence that the construction on respondents’ property was an improvement to real 

property intended to address any problem of water discharge, the two-year statute-oflimitations provision does not apply to appellants’ claim. We reverse.

FACTS

Appellants-landowners Carol and Timothy Quinn own two lakeshore lots (lots 18 

and 19) on Gull Lake in Beltrami County, which Carol Quinn acquired in 1997. Lot 17 is 

a lakeshore lot on Gull Lake that shares a northern boundary with lot 18. Quarter Horse 

Circle is an access road located on the western boundary of the lots. In 1997, lot 17 was 

vacant and undeveloped, and lots 18 and 19 had numerous healthy and mature trees. A 

natural berm separated lot 17 from lot 18. In her deposition, Carol Quinn testified that, in 

1997, surface waters from Quarter Horse Circle would naturally enter a drainage ditch on 

the southwest corner of lot 18, flow onto lot 17, and then drain into Gull Lake. 

In 2010, respondents William G. Johnson and Karen M. Johnson purchased lot 17 

and began constructing a house, mound system, and driveway on the property. In an

affidavit, William Johnson stated that construction of the house was substantially 

complete in March 2011. The backfill of the house’s basement allegedly caused surface 

waters from Quarter Horse Circle to be diverted over to the Quinn property. 

The Quinns allege that, since 2010, the diversion of surface water, which occurs 

whenever it rains or snow melts, has caused extensive erosion of their property’s 
3

shoreline and killed mature trees on the property. In a letter dated August 30, 2011, the 

Quinns informed the Johnsons that their house and mound system “block the natural 

drainage of the right of way. You cannot and must not redirect water onto our property.” 

The Johnsons took no action in response to the Quinns’ letter. 

On October 18, 2013, the Quinns served the Johnsons with a complaint alleging

trespass and negligence due to unreasonable diversion of surface waters and seeking

damages in excess of $50,000. 

On September 29, 2014, the Johnsons moved for summary judgment, arguing that 

the Quinns’ claims were barred by the two-year statute-of-limitations provision in Minn. 

Stat. § 541.051, subd. 1(a) (2014). The Quinns opposed the motion, arguing that Minn.

Stat. § 541.05, subd. 1(a), did not apply because they did not allege that the Johnson 

house was defectively designed. To the contrary, the Quinns argued that the Johnson 

house, mound system, and driveway “caused damage to their property by diverting 

surface water simply by being there and that there are not any other causes of water 

damage.” Along with their motion, the Quinns submitted a report by Karvakko 

Engineering detailing the significant damage to their shoreline, wetlands, and mature 

trees caused by the diversion of surface waters onto their property. To mitigate the 

extensive damage to the Quinn property, Karvakko Engineering recommended the 

construction of a diversion swale at a cost of $125,000.

Following a hearing, the district court granted the Johnsons’ motion for summary 

judgment. The district court explained that, in 2010, the Quinns noticed that surface 

waters were being redirected onto their property due to the construction of the Johnson 
4

house and informed the Johnsons that this was causing damage to their property. Relying 

on Nolan & Nolan v. City of Eagan, 673 N.W.2d 487, 497 (Minn. App. 2003), the district 

court concluded that Minn. Stat. § 541.051, subd. 1(a), required the Quinns to commence 

their action for injury to real property arising out of the defective and unsafe condition of 

an improvement to real property within two years after discovering the injury. Because 

the Quinns did not, the district court concluded that their claim is barred by the two-year 

statute of limitations. 

The Quinns appeal.

D E C I S I O N

A district court shall grant summary judgment “if the pleadings, depositions, 

answers to interrogatories, and admissions on file, together with the affidavits, if any, 

show that there is no genuine issue as to any material fact and that either party is entitled 

to a judgment as a matter of law.” Minn. R. Civ. P. 56.03. On appeal from summary 

judgment, this court reviews whether there are any genuine issues of material fact and if

the district court erred in its application of the law. STAR Ctrs., Inc. v. Faegre & 

Benson, L.L.P., 644 N.W.2d 72, 76 (Minn. 2002). We view the evidence in the light 

most favorable to the party against whom summary judgment was granted and review de 

novo whether a genuine issue of material fact exists. Id. at 76-77. We also review de 

novo whether the district court erred in its application of the law. Id. at 77. 

The Quinns argue on appeal that the district court erred in concluding that their 

trespass claim was barred under Minn. Stat. § 541.051, subd. 1. Instead, the Quinns 

contend that the six-year statute of limitations applies to their trespass claim because the 
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Johnson house created conditions leading to the unreasonable diversion of surface waters. 

See Minn. Stat. § 541.05, subd. 1(3) (2014) (stating that an action for trespass upon real 

estate must be commenced within six years). A defendant seeking to apply the two-year 

statute of limitations, which is an affirmative defense, “bears the burden of establishing 

that the claims are time-barred as a matter of law.” Nolan, 673 N.W.2d at 495 (citing 

Thiele v. Stich, 425 N.W.2d 580, 583 (Minn. 1988)). 

“Construction and applicability of a statute of limitations is a question of law,”

which we review de novo. Nolan, 673 N.W.2d at 495. We construe Minn. Stat. 

§ 541.051 narrowly, but still give effect to the plain language of the statute. Id. Viewing 

the evidence in the light most favorable to the Quinns, we conclude that the district court 

erred in determining that the two-year statute-of-limitations provision in Minn. Stat. 

§ 541.051, subd. 1, bars their trespass claim. The factual scenario presented in this case 

is more closely aligned to a trespass claim alleging unreasonable diversion of surface 

waters. Minn. Stat. § 541.051, subd. 1, provides in relevant part: 

(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 of the improvement to real 

property or 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. Date of 

substantial completion shall be determined by the date when 

construction is sufficiently completed so that the owner or the 
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owner’s representative can occupy or use the improvement 

for the intended purpose.

. . . .

(c) For purposes of paragraph (a), a cause of action 

accrues upon discovery of the injury. . . . 

(d) Nothing in this section shall apply to actions for 

damages resulting from negligence in the maintenance, 

operation or inspection of the real property improvement 

against the owner or other person in possession.

Minn. Stat. § 541.051, subd. 1(a), (c), (d). 

“The question of whether injury to property arises out of a defective or unsafe 

condition is one that turns on the individual facts alleged in the complaint.” Nolan, 673 

N.W.2d at 495. Here, the Quinns are not alleging a trespass claim arising from a 

defective condition of an improvement to real property. Rather, the Quinns’ complaint 

alleges an unlawful trespass onto their property because the Johnson house acts like a 

dam, pushing the surface waters onto their property and diverting from its natural course, 

which is to flow east from the road through the Johnson property and into Gull Lake. 

The Johnsons principally rely on two cases to establish the applicability of the 

two-year statute of limitations in the instant case: Nolan, 673 N.W.2d at 491, which 

involved the alleged negligent design of a sewer system that caused frequent, regular, and 

permanent flooding of appellant’s property, and Minch Family LLLP v. Estate of Norby, 

652 F.3d 851 (8th Cir. 2011), which involved the construction of a field dike on 

neighboring land that caused flooding of appellant’s property. Both Nolan and Minch

involved improvements to real property intended to redirect or mitigate the intrusion of 
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waters onto property. Nolan involved a storm sewer system constructed by the 

Minnesota Department of Transportation, which was obviously intended to deal with rain 

water discharge. 673 N.W.2d at 491. Minch involved the construction of a field dike that 

was “intended to avoid excess water flow to [the respondent’s] property.” 652 F.3d at 

856; see also Matter v. Nelson, 478 N.W.2d 211, 213-14 (Minn. App. 1991) (concluding 

respondents’ tort action concerning a swale designed to address the problem of water 

discharge was timely under Minn. Stat. § 541.051). 

But here, the construction of the Johnson house was not an improvement to real 

property intended to change the natural flow of surface waters as in Minch and Nolan. 

Rather, the construction on the Johnson property resulted in the unintentional, incidental

change in the flow of surface water. We conclude that Minn. Stat. § 541.051, subd. 1, is 

not designed to address the issue raised in the instant case. A respondent could raise the 

limitations period as a shield against any water-diversion claim involving an 

improvement to real property—barring the use of a portable pump—because field dikes, 

berms, and ditches are all considered to be improvements to real property. See Minn. 

Stat. § 541.051, subd. 1(a). Moreover, public policy would seemingly discourage 

neighboring property owners from immediately suing in this type of situation. See

VoiceStream Minneapolis, Inc. v. RPC Props., Inc., 743 N.W.2d 267, 271 (Minn. 2008). 

For example, one year after construction, a heavy storm could cause some change in 

surface water flow onto a neighboring property, but an ensuing two-year dry cycle could 

lull the neighboring property owner into believing there was no chronic water discharge 

problem. This would cause the property owner to inadvertently delay filing a claim 
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beyond the two-year statutory limit. If a future wet cycle then caused further runoff, a 

property owner’s action should not be time-barred because he waited to see if the water 

discharge would become a meaningful problem.

The Quinns’ claim of continuing trespass arising from the unreasonable diversion 

of surface waters is more appropriately addressed under the reasonable-use test. See Pell 

v. Nelson, 294 Minn. 363, 366-67, 201 N.W.2d 136, 138-39 (1972) (holding that 

reasonable-use test applied to trespass actions involving the direct intrusion of surface 

waters on plaintiff’s land). “‘Surface waters’ consist of 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, 226 Minn. 

163, 167, 32 N.W.2d 286, 289-90 (1948). Here, the Johnson house, mound system, and 

driveway act as a dam diverting surface waters into flows or pools on the Quinn property 

and away from its natural course through the Johnson property and into Gull Lake.

Under the reasonable-use doctrine, “if certain conditions are met, a landowner 

acting in good faith has the right to drain surface water and cast the water upon the 

burdened land of a neighbor.” Matter, 478 N.W.2d at 214. The conditions include 

1) there is a reasonable necessity for the drainage; 2) care is 

taken to avoid unnecessary injury to the burdened land; 3) the 

utility or benefit accruing to the drained land outweighs the 

gravity of the harm resulting to the burdened land; and 4) the 

drainage is accomplished by reasonably improving and aiding 

the natural drainage system, or if, in the absence of a practical 

natural drain, a reasonable and feasible artificial drainage 

system is adopted.
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Id. “The concept of ‘reasonable use’ is a flexible one and presents a question of fact to 

be resolved according to the peculiar facts in each case.” Sachs v. Chiat, 281 Minn. 540, 

546, 162 N.W.2d 243, 247 (1968). These conditions are relevant when determining 

whether an obstruction that is caused by a landowner on his land inhibiting the drainage 

of surface water from a neighbor’s land constitutes a reasonable use. Quist v. Kroening, 

410 N.W.2d 5, 6 (Minn. App. 1987).

Viewing the record in the light most favorable to the Quinns, they alerted the 

Johnsons no later than August 2011 of the drainage problems. In October 2013, the 

Quinns initiated an action alleging a continuing trespass from unreasonable diversion of 

surface waters. Thus, the Quinns’ trespass cause of action is timely under the six-year

statute of limitations. See Minn. Stat. § 541.05, subd. 1(3).

Reversed.