Garbarino v. Van Cleave

• Citation: 330 P.2d 28,214 Or. 554
• Parties: Ann GARBARINO, Appellant, v. Alvin VAN CLEAVE, Luella Van Cleave, Darrell Van Cleave and Audrey Van Cleave, Respondents.
• Decision Date: 24 September 1958
• Court: Oregon Supreme Court

Page 28

330 P.2d 28

214 Or. 554

Ann GARBARINO, Appellant, v. Alvin VAN CLEAVE, Luella Van Cleave, Darrell Van Cleave and Audrey Van Cleave, Respondents.

Supreme Court of Oregon, Department 1.

Argued and Submitted March 14, 1958.

Decided Sept. 24, 1958.

W. C. Winslow, Salem, for appellant.

Asa L. Lewelling, Salem, for respondents.

Before PERRY, C. J., and ROSSMAN, McALLISTER and SLOAN, Justices.

McALLISTER, Justice.

This suit was brought by Ann Garbarino as plaintiff to enjoin Alvin, Luella, Darrell and Audrey Van Cleave from using a drainage system constructed by said defendants to drain the surface water from their lands. Plaintiff complained that the system accelerated the flow of water onto her lands and damaged them. A decree was entered in favor of defendants, from which plaintiff appeals.

Plaintiff owns 43 acres of land in the Lake Labish district of Marion county, a few miles north of Salem. Much of plaintiff's tract is in the former bed of the reclaimed lake and is referred to as beaverdam land. The soil consists principally of decayed wood and vegetable matter, is light and washes easily.

The defendants own a tract of upland in the shape of an L, the long side of which adjoins the east side of plaintiff's land. The base of the L lies south of plaintiff's tract but is separated from it by a rectangular strip known as the Steusloff property. During periods of heavy rainfall the surface water from defendants' land naturally flowed into what had been the bed of two arms of inlets of the former lake. The two points at which the water flowed into the former lake bed were near the east and south boundaries of plaintiff's property. This flow was by natural channels except at one point where the water ran for a way in a ditch alongside a public road.

In October 1953, the defendants installed a system to facilitate the drainage of surface water from their land. The system consisted of lines of clay tiles laid three to five feet beneath the surface. The tiles were laid a quarter of an inch apart and water, after seeping through the soil, entered the lines through these joints. Only after a hard rain for a day or so did water run from the lines. Plaintiff contends that as a result of the installation and use of their drainage system by defendants, her land was flooded and eroded on two occasions during the winter of 1953-54.

The rule of the civil law regarding surface waters is now firmly established as the law of Oregon. In Street v. Ringsmyer, 108 Or. 349, 353, 216 P. 1017, 1018, the court said:

'There has been a great conflict of precedents in the United States about whether the common-law rule or that of the civil law respecting surface waters shall prevail. The question was not definitely settled in this state until the case of Rehfuss v. Weeks, 93 Or. 25, 182 P. 137, followed by Harbison v. Hillsboro, 103 Or. 257, 204 P. 613, in both of which the opinions were written by Mr. Justice Bean.'

In Rehfuss v. Weeks, 93 Or. 25, 182 P. 137, 139, the rule as to surface water and the drainage thereof was stated as follows:

'The defendant as a land owner had the right to turn or expel, upon the land of an adjacent owner, surface water that would naturally flow there, and in such quantities as would naturally drain in such direction, without liability for damages. Whitney v. Willamette Bridge Ry. Co., 23 Or. 188, 31 P. 472; Davis v. Fry, 14 Okl. 340, 78 P. 180, 69 L.R.A. 460, 2 Ann.Cas. 193; 5 M.A.L. § 469, p. 354. The owner of upper lands is not prohibited by the rule from cultivating his lands or draining them by artificial ditches, though surface water is thereby precipitated more rapidly upon the lands of the adjacent owner below, provided he does not cause water to flow on such lands which, but for the artificial ditches, would have flowed in a different direction, and provided he acts with a prudent regard for the interests of such adjacent owner. 30 Am. & Eng. Enc. of Law (2 ed.), 337; Angell on Watercourses (6 ed.), p. 122 et seq.; Anderson v. Henderson, 124 Ill. 164, 170 (16 N.E. 232); Wood v. Moulton, 146 Cal. 317 (80 P. 92); Shaw v. Ward, 131 Wis. 646, (11 N.W. 671, 11 Ann.Cas. 1139).'

In Harbison v. City of Hillsboro, 103 Or. 257, 204 P. 613, 618, Mr. Justice Bean discussed at some length the difference between the rule of the civil law and the common enemy rule, which the court called the common law rule. Regarding the right to accelerate the flow of surface water by artificial means, the opinion concluded as follows:

'* * * The rule that would best serve in this state, and tend to promote the interest of the people without causing undue hardship, would be to allow the owner of land to turn upon the land of an adjacent owner surface water in such quantities as would naturally drain in that direction by means of artificial drainage even though the flow of such water upon the lower tract is accelerated; due regard being observed for the interest of the adjacent owner so as to cause no unreasonable inconvenience. Whitney v. Willamette Bridge Ry. Co., 23 Or. 188, 192, 31 P. 472.'

See also Levene v. City of Salem, 91 Or. 182, 229 P.2d 255, and Wellman v. Kelley and Harrison, 197 Or. 553, 252 P.2d 816.

Under the foregoing rule the defendants had the right to install and use a system to drain the surface water from their lands into natural channels even though they thereby accelerated by flow of water onto the lower lands of plaintiff. The plaintiff does not allege and there is no evidence to prove that defendants' drainage system caused water to flow onto plaintiff's land that otherwise would have flowed in a different direction. Plaintiff does not allege that defendants changed the place where the surface water from their property naturally flowed onto plaintiff's lands. The complaint does allege that defendants collected and accumulated large quantities of surface water and greatly accelerated the flow thereof. The words 'collected' and 'accumulated' were not meant to charge that defendants impounded any water by a dam or in a reservoir and thereafter discharged such water onto plaintiff's land. There was no evidence of any such impoundage. On the contrary, defendants' drainage system was designed to and did hasten the flow of surface water in the same drainways and channels along which it had flowed onto plaintiff's lands prior to the construction of the drainage system.

Plaintiff concedes that Oregon has adopted the civil law rule as to surface water and that defendants have a right to drain their lands and in so doing to accelerate the flow of surface water onto plaintiff's land. Plaintiff contends, however, that defendants may exercise this right only if they can do so without 'substantially' or 'materially' damaging the lower lands. This would imply that defendants can cause damage by accelerating the flow of water provided the damage does not reach substantial proportions. We have been cited to no case in which the law regarding surface water has been so defined. The opinions of this court do not measure the right or privilege by the extent of the damage.

It should be noted that the civil law rule as adopted originally by the courts of this country did not permit any alteration in the natural flow of surface water. Any right or privilege to alter the natural flow of such water by artificial means has been granted by modification or qualification of the civil law rule and the qualifying rules are not uniform. It is not true, as said in Levene v. City of Salem, supra, that most of the courts of this country have adopted the rule of the civil law governing surface waters. It is clear, however, that by the great weight of authority in those...