Glassman v. Weldin Farms, Inc.

Decision Date14 April 1976
Citation359 A.2d 669
CourtCourt of Chancery of Delaware
PartiesCarl I. GLASSMAN et al., Plaintiffs, v. WELDIN FARMS, INC., a Delaware Corporation, et al., Defendants.

Louis J. Finger, Richards, Layton & Finger, Wilmington, for plaintiffs.

Howard L. Williams, And Edward M. McNally, Morris, James, Hitchens & Williams, Wilmington, for defendant Weldin Farms, Inc.

Regina M. Small, Asst. Atty. Gen., for the defendant Dept. of Highways & Transportation.

Joseph M. Bernstein, Asst. County Atty., for the defendant Government of New Castle County.

BROWN, Vice Chancellor.

This is an action brought by residential property owners to enjoin the corporate defendant, Weldin Farms, Inc., from draining surface water in increased amounts into a small creek known as Turkey Run which passes through and along the property owned by the plaintiffs Glassman. The government of New Castle County and the State Department of Highways have been joined as defendants to the extent they may be necessary to the granting of complete injunctive relief by virtue of permits or agreements granted by them to Weldin Farms in connection with the drainage system of the latter here in issue. This is a decision after trial.

The issue for decision brings into focus what the parties argue to be a state of ambiguity existing in the decisional law of this State with regard to surface water drainage rights. Before wrestling with the precedents, however, I shall set forth the pertinent facts as I find them which must govern the outcome of the present controversy.

Plaintiffs Glassman live in a picturesque residential area known as Forrest Hills Park in the suburbs of Wilmington. They purchased their property in 1958 and moved into their home in 1959. Their property fronts on a street known as Simon Road. The watercourse in question, Turkey Run, flows under Simon Road and bisects a portion of plaintiffs' property as it flows toward the rear of their lot. As it reaches the rear of the lot, it turns sharply to the left so as to adjoin the rear boundary of the property. After some short distance it turns sharply to the right so as to flow along the side of property formerly owned by plaintiffs Muscelli and passes under Bedford Boulevard, the next street over. There is a small bridge over Turkey Run at both Simon Road and Bedford Boulevard with a double culvert under each so as to let the waters pass through. In fairness, Turkey Run is not large and, aside from the setting in which it now finds itself, it might be likened to a woodland ditch in a more rural area.

When the Glassmans purchased their property, there was very little flow of water in Turkey Run. In fact there were long periods of time when it remained completely dry. Over the years, however, as more and more development occurred upstream, the level of water began to rise and on occasion the creek flow would become turbulent. In 1967, for the first time, the creek overflowed its banks during a heavy storm. Since that time there have been several other occasions where the creek has overflowed, causing damage to one degree or another to the Glassman property. A garden planted on the far side of the creek has been washed away more than once. Tan bark used for walkways and plant coverings have been washed from the Glassman backyard with some overall regularity. During one heavy rainy period the kennel housing the Glassman hunting dogs was washed from its moorings and overturned, with near fatal consequences to the canine inhabitants. The basement workshop and wine cellar of the Glassman home was seriously flooded on one occasion, and on others water entered the house through the basement windows and a back door. During this period, surface water from a higher area to the west of the Glassman property flowed down Simon Road itself and emptied into Turkey Run.

Against this backdrop of intermittent inconvenience, the Glassmans returned from a vacation in September 1974, to discover that as a part of its development of higher lands up Simon Road, Weldin Farms had installed a drainage system which would carry surface water from about two-thirds of its land, or some 17 acres, down the southerly side of Simon Road so as to empty, through a 42 inch pipe, into Turkey Run at the Classman property just inside the Simon Road bridge. Thus, drainage from a large portion of the proposed Weldin Farms residential development will now be channeled by means of storm sewers down to Turkey Run and through and around the Glassman property. After unsuccessful protest to Weldin Farms, this suit followed.

At trial the expert testimony showed that with Weldin Farms fully developed (and thus with a portion of the previously open ground being covered by streets, roofs, etc., so as to reduce the ability of rain water to be absorbed into the ground) about 4 per cent of the flow of the water reaching Turkey Run from Weldin Farms would represent an increase over the natural flow that occurred prior to the commencement of development. This percentage increase was premised upon a 50-year storm (i.e., one with an intensity occurring on the average of once every 50 years), and also assumed the full development of the Turkey Run drainage basin upstream from Simon Road plus the assumption that the peak flow from Weldin Farms would reach Turkey Run at Simon Road at the same time that the peak flow from upstream areas would reach the same point.

Based upon these assumptions, expert witnesses for the plaintiffs concluded that upon the full development of Weldin Farms, Turkey Run might be expected to rise about an additional one inch during the type of storm that would be likely to occur once every 50 years which, in turn, could cause a lateral, out-of-bank dispersion on the Glassman property of an additional 5 to 15 feet. 1 Expert witnesses for the defendants, using a 1971 flood level study prepared for the County as their source, offered the opinion that based upon a fully developed Turkey Run drainage basin, and assuming (as did one of plaintiffs' experts) that one-third of the resultant water level increase will be attributable to the Weldin Farms development, the water level of the creek at the rear of the Glassman property could be expected to rise .05 of a foot, or .2 of an inch, above the 1971 level in the event of a 50-year storm. In short, although differing in degree, the evidence indicates that the development of Weldin Farms and the resultant channeling of its surface water into Turkey Run at Simon Road by means of storm sewers as opposed to a natural runoff, will result in a small increase in the flow of the creek during a heavy storm which, when the creek is out of its banks anyway because of the storm, will cause its overflow to be somewhat wider in scope and to flood a greater portion of the Glassman property than would normally occur without the development of Weldin Farms and the artificial channelling and draining of its surface waters. By the same token the frequency of out-of-bank flooding would also be increased to a slight extent.

It is the position of the plaintiffs that the law of this State is such that an upper landowner may not artificially increase the flow of surface waters upon a lower landowner above its natural rate or volume, no matter how minimal the increase may be. They further take the position that an increase which will cause additional flooding constitutes an interference with the right of the lower landowner to the use and enjoyment of his property, and thus may be enjoined as a continuing nuisance even though in terms of dollars such periodic flooding may not constitute a great or substantial injury.

Defendant Weldin Farms disputes this, arguing that the test to be applied under Delaware law is that of reasonable use, and that in the absence of evidence of substantial injury to the lower owner, he has no standing to object to a minimal increase by an upper owner nor can he justify the issuance of an injunction on the theory that otherwise he will suffer irreparable harm. Weldin Farms also points to the fact that before finalizing the purchase of the land for some $500,000 obtained approval of its drainage plan into Turkey Run from both the County and the State Department of Highways, and to now require it to take additional steps to slow down the flow of drainage water through retention devices would impose a severe monetary hardship upon it out of all proportion to the benefit that would be received by the plaintiffs.

All defendants further rely on the fact that the County has adopted ordinances pertaining to the use and approval of drainage into natural watercourses and, by § 6--15.1 of the Code has provided that '(2) Inundation of yards, periodic basement flooding is not considered significant damage . . ..' Thus, it is argued, legislative descretion and judgment has been exercised so as to define the very conditions of which plaintiffs complain as being insufficient to deny Weldin Farms its intended use of Turkey Run.

I.

In an effort to get a handle on the threshold issue presented by the foregoing facts and arguments, I hereby state the question, as I perceive it, as follows: Where in times of heavy rain, occurring on an intermittent basis over a period of years, a natural waterway is known to overflow its banks and flood the land of an adjacent property owner, may an upper owner be permitted to artificially increase the natural drainage of surface water into the stream in such a manner as to increase the area of flooding on the property of the lower owner during such times of heavy rain, regardless of how insubstantial the increase may be and despite the fact that it causes no permanent injury or substantial economic loss to the lower owner?

It is on this narrow point that the parties take differing views of the existing Delaware case law. Since these precedents are only five in number, and since I am not noted for...

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