Carter v. Hawaii County

• Decision Date: 19 July 1963
• Docket Number: No. 4174,4174
• Citation: 384 P.2d 308,47 Haw. 68
• Parties: Anita CARTER v. COUNTY OF HAWAII.
• Court: Hawaii Supreme Court

Page 308

384 P.2d 308

47 Haw. 68

Anita CARTER v. COUNTY OF HAWAII.

No. 4174.

Supreme Court of Hawai'i.

July 19, 1963.

Syllabus by the Court

1. An upper owner may cause surface water to flow in its natural direction through a drainway onto a lower owner's land.

2. An owner of property does not have the right to drain into a natural watercourse or drainway surface waters which otherwise would not flow in that direction nor upon the servient lands.

3. A municipality is liable for injuries caused by negligent maintenance of a drain constructed by a private party where the municipality has adopted the drain in some legal manner or has assumed control and management thereof.

4. The fact that a municipality has on occasion undertaken repairs of a privately owned drain is not sufficient to constitute an adoption of the drain by the municipality.

5. The substitution and maintenance of a closed underground conduit in place of a natural watercourse through a lower owner's property does not restrict the right of the dominant owner to discharge surface waters which would formerly have flowed through the watercourse.

6. The owner of dominant lands is not liable for the rupture of a conduit substituted for a natural watercourse on servient lands by the discharge into the conduit as an incident to the reasonable development and use of his property, of surface waters which formerly would have naturally flowed in the watercourse.

Roy K. Nakamoto, Hilo (Pence & Ushijima, Hilo, of counsel), for appellant.

Cyril S. Kanemitsu, First Deputy County Atty. of Hawaii County, Yoshito Tanaka, County Attorney, for appellee.

Before TSUKIYAMA, C. J., and CASSIDY, WIRTZ, LEWIS and MIZUHA, JJ.

CASSIDY, Justice.

This is an appeal from a judgment in favor of the defendant, County of Hawaii, in an action for damages caused by the flooding of a residential building on plaintiff-appellant's property opposite the county's Eugene S. Capellas Park, formerly known as the Puueo Park. The case was tried without a jury.

The flooding resulted from the rupture on plaintiff's property, on December 9, 1954, of a storm drain having its main intake in the park. Similar breaks of the drain had occurred in 1949 and 1950. Claims for damages on those occasions were settled by compromise and paid by the county. The county also undertook repair of the 1949 and 1950 ruptures.

The park lies mauka (west) of Wainaku Street which runs north towards Hamakua and south towards Hilo. Iliahi and Lehua Streets end at their junctures with Wainaku Street. Plaintiff's property is the lot on the mauka-Hilo (southwest) corner of the block bounded by these streets.

The drain directly involved in this action (which we will refer to throughout as 'the' drain) starts in the northwest sector of the park and runs in a makai (easterly) direction through the park, under Wainaku Street, across plaintiff's property in a curve to the right, under Iliahi Street, and then discharges into an open ditch. It is made up of three separate and distinct segments.

The middle section of the drain is a 3-by-3-foot sturdy concrete box culvert, which starts at a point in the park designated as B-1, ¹ located about 240 feet mauka of its Wainaku Street boundary. This culvert runs under Wainaku Street and into plaintiff's lot for a distance of approximately 20 feet, where it connects with the lower section of the drain.

The lower section of the drain is an underground conduit approximately two feet high and three feet wide, constructed with loose-rock sides and top. The plaintiff's house rests on the ground over this section of the drain. In the vicinity of plaintiff's house, the top of this section of the drain is five feet below the surface of the ground. The top is slightly arched. It was made of large rock spans with smaller rocks wedged in between them, all closely fitted and held together on top of the side walls by their own weight and the weight of the soil above. No mortar was used in constructing this portion of the drain.

It was stipulated that the box culvert and the loose-rock section of the drain were installed more than 50 years ago by private parties and that, 'Prior to 1930 the drain was adequate to handle the surface water draining from Wainaku Avenue and points above without bursting, but sometimes it could not actually take or handle all of the surface water.' No contention is made that the maintenance and use of the box culvert, as it existed when and after the county took over the park site, was in violation of the lower owner's rights.

The upper section of the drain is a concrete pipe 36 inches in diameter. It is connected to the box culvert at B-1 and runs 70 feet to a point, designated B-3-a, which is 50 feet from the mauka boundary and 165 feet from the Hamakua (north) boundary of the park. This section was installed by the county, in 1946.

The elevation of the new intake at B-3-a is 72.2 feet. Prior to the construction of the park and the installation of the 70-foot concrete pipe extension, the old drain had two intakes, one at B-1 and the other at a point, designated A, about 90 feet to the east of B-1. The intake at A was sealed when the extension was connected to the box culvert at B-1.

There are three small intakes on Wainaku Street which empty into the drain. Two are at the opposite curbs of the street directly over the drain. The third is located at the mauka curb approximately opposite the southern boundary of Iliahi Street. These intakes are all marked B-2 on Exhibit B.

It was stipulated on pretrial hearing that the drain follows the line of a natural watercourse. This is also fully evident from plaintiff's Exhibit C, a contour map prepared in 1936 showing the topography at that time of the present park site and the area in the vicinity west of it. The exhibit indicates that the watercourse in which the drain was laid runs in a ravine which extends a considerable distance above the park. By reason of the terrain adjoining the ravine the watercourse takes the natural runoff from an extended area.

In 1948 the county completed development of the four-and-three-quarter-acre park. ² According to Exhibit B, the park was to be graded from an elevation of 78 feet at its makai boundary above the sidewalk on Wainaku Street in a gradual uniform slope to an elevation of 85 feet at its mauka boundary. The exhibit shows that with the exception of a very limited area in the vicinity of the Hilo (south) end of the mauka boundary the slope of the park site along and from that boundary prior to development was towards the watercourse in which the drain was laid. The plan provides for 0% slope in both north and south directions from the center line of the park. It shows elevation of the intake at B-3-a as 72.2 feet. While it cannot be determined from the plan itself, testimony and admissions (tacit, at least) of the parties warrant the finding that when the grading of the park was completed the elevation of the ground just makai of the intake at B-3-a was raised to about 83.6 feet in such a manner as to form a dam below the intake and that the dam so formed had the effect of increasing the head of water which could be impounded above the intake by about two and one-half feet over the head which could have been produced from water impounded at maximum height by the dam formed by the terrain below points B-1 and A when the principal intakes for the drain were at those points. This appears to have been accepted by the parties and the court. It apparently was also inferred and accepted that the water above the intake at B-3-a had reached such maximum height each time the drain ruptured. If the inference is warranted it would mean that the level of the water in the dam was approximately 11 feet above the intake on those occasions.

In 1951 the county installed a second underground drain consisting of a 36-inch concrete pipe with its intake approximately 20 feet directly mauka of point B-3-a. This drain runs diagonally across the park in a southeasterly direction to a culvert under Wainaku Street and discharges into an open ditch.

The only direct testimony bearing on what occurred on December 9, 1954, was the rather sketchy testimony of Mrs. Wanda C. Tolson, who lived in the basement apartment of plaintiff's house. This witness stated that when she left home at about 8:00 a. m. that day it was raining, as it had been the day and night before, but that she noticed nothing to be concerned about. She said that she returned about an hour later and that from Wainaku Street 'the park was like a lake with water clear up into the cane fields.' She 'couldn't see any of the park--it was all water back into the ravine.' She could not tell what the level of the water was as it extended back into the ravine, but she said, 'It was alarming to me.' She said when she looked down from Wainaku Street into plaintiff's yard, 'It looked like a fountain' and that 'I realized something had broken; I didn't know what, but there was a fountain.' She said the fountain was a few feet mauka of the house. When she went into her apartment the water was ankle high but it rose rapidly and was up to the top of her stove in a matter of minutes. According to her testimony, all the water came from the fountain--there was no spillover from either Wainaku or Iliahi.

The only other witness testifying with direct knowledge of any of the floodings was the plaintiff's husband, Milton H. Carter, who had lived with her on the premises from 1929 until 1952 when they moved to Honolulu. He said in respect to both the 1949 and 1950 breaks that the drain 'exploded' and that when he looked toward the park 'It was just a mass of water, just like a lake extending all the way back--as far back as I could see there.' He asserted that each of the three breaks had occurred at the same or approximately the same place in the drain. He said that when he visited the property about two weeks after December 9, 1954, ...