Butler v. Bruno

• Decision Date: 30 July 1975
• Docket Number: No. 73-209-A,73-209-A
• Parties: , 93 A.L.R.3d 1183 Edward J. BUTLER et ux. v. Joseph BRUNO. ppeal.
• Court: Rhode Island Supreme Court

Page 735

341 A.2d 735

115 R.I. 264, 93 A.L.R.3d 1183

Edward J. BUTLER et ux. v. Joseph BRUNO.

No. 73-209-Appeal.

Supreme Court of Rhode Island.

July 30, 1975.

[115 R.I. 276] Kenneth M. Beaver, Providence, for plaintiffs.

John F. Dolan, Providence, for defendant.

OPINION

KELLEHER, Justice.

During the summer season, the litigants presently before us are next-door neighbors. The plaintiffs are husband and wife. They seek damages which result from the defendant's deflection of surface water from his property onto their premises. A nonjury trial was held before a justice of the Superior Court. At the conclusion of the presentation of all the testimony, the trial justice found for the defendant. The plaintiffs have appealed.

In 1961, the Butlers purchased a summer home. It is located in the Sand Hill Cove section of the town of Narragansett on Maple Avenue. There they have enjoyed many a pleasant and restful summer playing croquet and whiffle ball on the lawn, mowing the grass, and doing the usual things one is supposed to do in a season which one lyricist has described as a time when 'the livin' is easy.' In 1969, Bruno purchased a number of undeveloped lots on Maple Avenue, one of which was contiguous with and ran along the easterly boundary of the Butler property.

Past and present residents of the area described the Bruno lot as having been a swamp or marshland before he began building on it. One witness told how when he went on the property to pick cattails he would have to wear rubbers because of the mud and water underfoot. There were witnesses who testified that the Bruno lot was lower in elevation than the surrounding lots and that consequently it served as a depository for the rainwater runoff coming from the adjoining easterly and northerly areas. The Butlers' property, they said, was at all times higher in elevation than the Bruno lot and was always dry.

Bruno began building activities in August 1970. He first spread 3 feet of gravel over the entire lot. This step was necessary because of the high-water table over his land and as a prerequisite of the State's approval of his proposed sewage disposal system. The home was built on top of the fill and by the spring of 1971 it was ready for occupancy. Bruno had a retaining wall built along the Butlers' property line. The wall, which was composed of asphalted wooden beams, was designed to hold the fill. The fill had been graded to taper toward the front and rear of the lot. However, Bruno failed to provide any drainage for the surface water that had previously flowed onto his land from the properties to the west of his lot.

The Butlers told the trial justice that once Bruno commenced filling in his land their property took on the appearance of one massive puddle with the water flooding the rear portion of their premises for most of the year. Their sewerage system became inoperative as the sewage backed up into the house.

The trial justice found that before Bruno began building, the surface water had flowed from west to east and would gather on the Bruno lot. He also found that the additional 3 feet of fill and the construction of the retaining wall stopped the easterly flow of the surface water, causing it to flood the Butler property. The trial justice observed that if he were to rule that Bruno was liable to the Butlers, he would order the entry of a money judgment in their favor for $5,200. This sum was the figure used by a real estate expert in estimating the loss of value of the Butler property which was attributable to the flood.

At this juncture, the trial justice ruled that the Butlers' loss was damnum absque injuria, or in the vernacular, while the Butlers sustained damages, there could be no recovery because Bruno did not violate any recognized legal or equitable right. In making this observation, the trial justice commented on the paucity of precedent to guide him, and after examing the literature that has been written in this area of the law, accepted as the law of this state the so-called 'common-enemy' doctrine as modified by the rule of 'reasonable use.' He thereupon held that although the Butlers had sustained damage, there would be no recovery since Bruno had used 'reasonable care' in developing his property and he had not 'unnecessarily injured' the Butlers.

We cannot fault the trial justice's attempt to decide what is or should be the surface water law of this jurisdiction. It is true that at the turn of the century this court, in deciding an issue different from the one now before us, assumed that the common-enemy doctrine was the law of Rhode Island. Johnson v. White, 26 R.I. 207, 58 A. 658 (1904). We will, however, opt for another rule which shall be discussed after we first define the term surface water and discuss the various views which have been expressed by courts which have considered the rights of neighboring landowners and the damages resulting from the diverting of surface water.

As used in this opinion, the term surface water means the water from rains, springs, or melting snows which lies or flows on the surface of the earth but does not form part of a well-defined body of water or a natural watercourse. It does not lose its character as surface water merely because some of it may be absorbed by or soaked into the marshy or boggy ground where it collects. Enderson v. Kelehan, 226 Minn. 163, 32 N.W.2d 286 (1948).

There are three basic rules which have been used to resolve the surface water disputes that have arisen in the United States.

The first is the common-enemy doctrine. The common-enemy doctrine is so named because at one time surface water was regarded as a common enemy with which each landowner had an unlimited legal privilege to deal as he pleased without regard to the consequences that might be suffered by his neighbor. This rule received judicial approbation in a time when the law held in high regard one's freedom to do with his land as he wished. One of the earliest cases to espouse this view was Gannon v. Hargadon, 92 Mass. (10 Allen) 106 (1865). New Jersey was the first jurisdiction to describe the rule by employing the phrase 'common enemy.' Town of Union v. Durkes, 38 N.J.L. 21 (1875). Several courts in adopting this rule have said that it encourages the development and improvement of real estate and clearly delineates the rights of all interested parties. Concededly, litigation is kept to a minimum because in its application no one's rights are invaded. However, the simplicity of the rule does create problems, for, as one commentator has expressed it:

'* * * landowners are encouraged to engage in contests of hydraulic engineering in which might makes right, and breach of the peace is often inevitable.' Maloney & Plager, Diffused Surface Water: Scourge or Bounty, 8 Nat. Resources J. 73, 78 (1968).

The Butlers might have invoked the common-enemy rule. The engineer testified that they could have alleviated their drainage problems by raising the level of their land with fill. Such a step, the witness said, would cause the surface water to gather and accumulate on the land of the Butlers' westerly neighbor. Presumably, if the Butlers were to pursue this remedy, they, rather than Bruno, would be the defendants as the domino theory of litigation enveloped the Maple Avenue residents. One obvious drawback to the common-enemy approach is the risk that its adoption can encourage a proliferation of litigation and engender neighborhood ill will.

The second principle upon which some courts have relied in resolving surface water disputes is called the 'civil-law' rule.

The civil-law rule was first adopted in this country by Louisiana in 1812. Orleans Navigation Co. v. New Orleans, 2 Martin (O.S.) 214 (1812). It is said to have its roots in Roman Law and the Napoleonic Code. Annot., 59 A.L.R.2d 421, 429 § 5 (1958). The rule is usually expressed in terms of an easement of natural drainage so that the owner of the lower land must accept the surface water which naturally drains onto his land but the upper owner may do nothing to increase the flow. Expressed in a more precise manner, the rule is that 'A person who interferes with the natural flow of surface water so as to cause an invasion of another's interests in the use and enjoyment of his land is subject to liability to the others.' Kinyon & McClure, Interferences with Surface Waters, 24 Minn.L.Rev. 891 (1940). The civil-law rule has the virtue of predictability in that it tells a prospective purchaser or acquirer of a parcel of real estate just what is expected of him. If it is applied to the letter, the rule can impede the physical and economic development of a locality. Its application can cause an evidentiary problem as the courts seek to determine what was the exact course of the 'natural flow' of the surface water before the bulldozers arrived on the scene.

Both the common-enemy and the civil-law rules are encrusted with the verbiage that is usually associated with the law of real property. When they are used, one hears such terms as easements, the dominant estate, the servient estate, and servitudes, and the classicist has the opportunity to try his hand at translating such ponderous Latin phrases as cujus est solum, ejus est usque ad coelum et ad infernos ¹ or aqua currit, et debet currere ut currere solebat. ²

Because of the harsh and often inequitable consequences of a strict application of either rule, courts through the years have created numerous exceptions, distinctions, and permutations to alleviate otherwise unjust results. Sometimes these modifications have caused the two antithetical doctrines to produce the same results. Thus, although the basic common-enemy rule allows each owner a carte blanche to deal with unwanted surface water, courts have held that the owner may not discharge the unwanted water upon neighboring land by collecting it into a concentrated flow by artificial means and then discharging it, if by so doing ...