Dugan v. Long
| Decision Date | 27 May 1930 |
| Citation | 28 S.W.2d 765,234 Ky. 511 |
| Parties | DUGAN v. LONG. |
| Court | Kentucky Court of Appeals |
Appeal from Circuit Court, Jefferson County, Common Pleas Branch Fourth Division.
Suit by Thomas S. Dugan against Mrs. Gulnear Baker Long. Judgment for defendant, and plaintiff appeals.
Affirmed.
H. H Huffaker, William Marshall Bullitt, and John R. Moremen, all of Louisville, for appellant.
Burke & Lawton, of Louisville, for appellee.
On March 30, 1909, the appellant, Thomas S. Dugan, purchased a lot on Lexington road in the suburbs of Louisville and erected a residence thereon. In December following, the appellee, Mrs. Gulnear Baker Long, acquired the adjoining lot and built a residence on it. Her lot was lower than that of Dugan's, and the surface water in its natural course flowed off his lot onto and over it. During October and November, 1910, appellee filled in and raised the grade of her lot so that its level was higher, and thereby obstructed the natural flow of the surface water and caused it to accumulate and flood appellant's lot after each heavy and unusual rainfall. On occasion it formed a pool of large dimensions.
The appellant's petition stated the foregoing facts and charged that they caused "permanent damage" to his lot in the sum of $10,000, for which he sued. In a second paragraph it was alleged that the defendant had also caused to be constructed a culvert in front of her lot near the division line in such manner as to prevent the water freely draining over and through it, resulting in its accumulation over the entire width of the Dugan lot and over his driveway and thereby causing "great and permanent damage" to that lot in the sum of $2,000.
The suit was filed October 13, 1925, but no material steps were taken until March 12, 1927, when an answer was filed traversing the allegations of the petition, except as to the ownership of the property. A year elapsed, when an amended answer was filed pleading that the grading of the defendant's lot and construction of the culvert were permanent improvements, completed and existing for more than ten years before the commencement of the action, and that any cause of action by reason thereof was barred by the statute of limitation. In another paragraph, facts were alleged and pleaded as an estoppel. Demurrer to the amended answer was overruled. Plaintiff tendered amended petitions in which he adopted and reaffirmed each and every allegation of his original petition, and in addition pleaded that the work and grading on the defendant's lot was done in an improper, careless, unlawful, and negligent manner, in that it provided no means of disposing of the natural flow of water, etc., and that, by reason of such negligent construction, the water was caused to collect on his lot. The court refused to permit the filing of these amended petitions, which was equivalent to sustaining demurrers to them. Shuey v. Hoffman, 224 Ky. 765, 7 S.W.2d 202. The plea of estoppel and facts relied on were controverted of record. Plaintiff offered to file a reply denying that the acts complained of in his petition were permanent improvements and that his cause of action was barred by limitation. He repeated in this reply, in substance, the allegations set up in his amended petitions. The filing of this pleading was also refused.
The case coming on for trial, the plaintiff proved the filling in and raising of the defendant's lot and the obstruction of the natural flow of water with the resulting conditions described in his petition. He established in detail damage to the use of his property, and expressed the opinion that its salable value was reduced 25 to 50 per cent., or about $7,500. He had expended several hundred dollars from time to time in having débris and mud removed from his lot and in having his septic tanks and pipes emptied and cleaned. He admitted that no effort had been made to raise the grade of his own lot, which he says was because the ground around him was higher and filling it in would not relieve the condition. At the conclusion of the plaintiff's evidence, the court peremptorily instructed the jury to find for the defendant.
We may eliminate consideration of the claimed errors which relate to the construction of the culvert and its effect, for it is conclusively shown by the evidence that this was built at a point 8 feet out in the roadway. Our attention is to be directed to the claimed errors respecting the case as it related to the filling in of the defendant's lot and the consequent stopping up of the natural channel.
As stated in the leading case of Pickerill v. City of Louisville, 125 Ky. 213, 100 S.W. 873, 30 Ky. Law Rep. 1239, in this state, we have adopted the rule of the civil law in respect to cases of this kind. That rule or doctrine is that a lower estate is subject to the easement or servitude of receiving the natural flow of surface water from the upper estate, and, if this proves to be an inconvenience, in the nature of the case, it is unavoidable and the owner of the lower ground has no right to erect embankments or create other obstructions by which the natural flow of surface water is stopped or caused to back up on or overflow the upper ground.
The petition and offered amendments are to be considered as describing a permanent condition, as in fact the evidence introduced in behalf of the plaintiff proved it to be. If such a permanent structure results in the character of actionable damage for which there must be a recovery once for all, then the ruling of the court in refusing the filing of the amended petitions becomes immaterial so far as they sought to plead negligence, and proper so far as they sought to avoid the effect of the statute of limitation, for plaintiff's own pleadings showed the time at which the statute began to run, namely, on the completion of the work, which was fifteen years, lacking one month before the institution of the suit.
A permanent structure of this character is defined as one which may not be readily remedied, removed, or abated at a reasonable expense, or one of a durable character evidently intended to last indefinitely, costing as much to alter as to build it in the first instance. City of Richmond v Gentry, 136 Ky. 319, 124 S.W. 337, 136 Am. St. Rep. 255; L. & N. R. Co. v. Conn, 179 Ky. 478, 200 S.W. 952; C. & O. Ry. Co. v. Coleman, ...
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