Gus Machado Buick, Inc. v. Westland Skating Center, Inc.
| Decision Date | 19 May 1987 |
| Docket Number | 86-482,Nos. 85-2601,s. 85-2601 |
| Citation | 12 Fla. L. Weekly 1289,523 So.2d 596 |
| Parties | 12 Fla. L. Weekly 1289, 13 Fla. L. Weekly 1025 GUS MACHADO BUICK, INC., Appellant, v. WESTLAND SKATING CENTER, INC. and Hialeah Skating Center, Ltd., Appellees. |
| Court | Florida District Court of Appeals |
Carey, Dwyer, Cole, Eckhart, Mason & Spring and Pamela Beckham, Miami, for appellant.
Greenberg, Traurig, Askew, Hoffman, Lipoff, Rosen & Quentel and Alan T. Dimond and Steven M. Goldsmith, Miami, for appellees.
Before BARKDULL, NESBITT and FERGUSON, JJ.
In this consolidated appeal, Gus Machado Buick, Inc. (Machado) appeals from the trial court's final judgment and its order awarding costs in favor of Westland Skating Center, Inc. (Westland) and Hialeah Skating Center, Ltd. (Hialeah). We reverse.
We agree with Machado's contention that the trial court incorrectly granted Westland's motion for partial summary judgment. The trial court held that as long as Westland, as an upper elevation landowner, had constructed its building in accordance with the South Florida Building Code, Machado's lower elevation neighboring land remained the servient tenement for all surface water flowing from Westland's property. The trial court granted partial summary judgment solely on that basis and instructed the jury accordingly. This was error.
Florida follows the civil law rule regarding surface water. Under this rule, the owner of higher elevation land has an easement on lower elevation land for the natural flow of surface water. Koger Properties, Inc. v. Allen, 314 So.2d 792 (Fla. 1st DCA 1975), cert. denied, 328 So.2d 842 (Fla.1976); Gwinn v. Andrews, 310 So.2d 424 (Fla. 1st DCA 1975); see Seminole County v. Mertz, 415 So.2d 1286 (Fla. 5th DCA), review denied, 424 So.2d 763 (Fla.1982). See generally F. Maloney, S. Plager, R. Ausness, B. Canter, Florida Water Law 613-18 (1980); Annotation, Modern Status of Rules Governing Interference with Drainage of Surface Waters, 93 A.L.R.3d 1208 (1979). The rule does not extend, however, to permitting the upper elevation owner to increase the natural flow of the surface water onto the lower elevation owner's land. Hodge v. Justus, 312 So.2d 248 (Fla. 1st DCA 1975); New Homes, Inc. v. Mayne, 169 So.2d 345 (Fla. 1st DCA 1964); F. Maloney, S. Plager, F. Baldwin, Water Law and Administration: The Florida Experience 202 (1968) [hereinafter cited as Maloney & Plager]. As the court in Mayne indicated:
[T]he servitude that the owner of the higher adjoining land has on the lower land for the discharge of surface water naturally flowing onto the lower land from the dominant estate ordinarily extends only to surface water arising from natural causes, and cannot be increased or made more burdensome by the acts or industry of man.
The trial court's ruling is in effect an application of the reasonable use rule concerning The trial court's partial summary judgment, which in effect determined that as long as Westland acted reasonably Machado's land had to accept all the surface water Westland cast upon it, was an incorrect statement of Florida law on the subject of surface water. In addition, the ruling removed a relevant issue from the jury's consideration, which Machado had raised in its defense, concerning whether the water flow had indeed been increased by Westland's construction. 2 Cf. McDaniel v. Zoldak, 423 So.2d 572 (Fla. 1st DCA 1982) (). Had Machado been able to prove that Westland had increased the flow of surface water naturally flowing onto Machado's property, it may have been entitled to have protected its property as it did, and would, therefore, not have been liable to Westland. See Maloney & Plager, supra, at 216.
surface water. 1 Although the Fifth District Court of Appeal has alluded to it, see Mertz, 415 So.2d at 1289, Florida courts have never accepted the reasonable use rule but have consistently followed the civil law rule. See Maloney & Plager, supra, at 206-07. Consequently the issue facing the court was not whether Westland's use of its property was reasonable under the circumstances, but rather whether its construction caused an increase in the amount or a diversion of the surface water flowing onto Machado's property
The trial court's final judgment and order granting costs in favor of Westland and Hialeah are, therefore, reversed. The cause is remanded to the trial court to apply the correct rule in a new trial.
Reversed and remanded.
ON MOTION FOR REHEARING
The motion for rehearing is denied.
Before SCHWARTZ, C.J., and BARKDULL, HENDRY, HUBBART, NESBITT, BASKIN, DANIEL S. PEARSON, FERGUSON and JORGENSON, JJ.
The motion for rehearing en banc is denied.
In phrasing the question for review as "whether [Westland's] construction caused an increase in the amount or a diversion of the surface water flowing onto Machado's
property" the panel overlooks the main point. The question presented, more precisely, is whether the owner of lower elevation land, who erects an eight-foot concrete wall which dams all waters flowing from the upper lands, is liable for resulting flood damages to the property on the adjoining higher elevation land.
In 1961 the properties involved in the appeal were in their natural condition as part of the Everglades. Westland's property was the higher elevation property and surface water naturally flowed to the lower elevation property. In 1970 Machado's predecessor, Seipp Buick, built a car dealership on the lower land. A putt-putt golf center stood on the upper Westland site. Floods caused damage to the cars on the Buick lot in 1979 and 1980 while the Hialeah Skating Center was being built on the Westland site.
The skating center was built in compliance with the South Florida Building Code adopted by the City of Hialeah. Soakage pits, comprised of subterranean concrete boxes which hold water, and previous grassy areas were utilized to control drainage. After construction the Westland property remained at a higher elevation than the car dealership.
Troubled by problems with rainwater runoff, the owner of Seipp Buick met with the owner of the Westland property to discuss methods of dealing with drainage. No agreement was reached. Subsequently, Seipp constructed a wall eight-feet high and two-feet deep to stop the flow of water from Westland's property. An engineering firm had advised Seipp of alternative ways to control water runoff such as raising the grade of the property or building dry wells or soakage pits. Seipp decided against those procedures and went ahead with plans to build the wall.
In August 1981, shortly after the wall was built, Westland discovered that its wooden skating floor had more than a thirty percent water content and that the floor was rising. Westland ceased operations and constructed a new floor at a cost of approximately $96,000.
In September, after Westland reopened, surface water accumulated behind Seipp's wall during a heavy rainfall and flooded the skating center. Westland did not replace the floor again but attempted to repair the damage. Seipp then added the drainage pits and additional fill the engineers had previously recommended. Westland alleged that it was unable to return the skating floor to its pre-flood condition and as a result business declined forcing it to close.
Westland, and its landlord, Hialeah Skating Center, filed an action against Seipp for damages and for a mandatory injunction to remove the wall. Seipp counterclaimed for damages and for an injunction prohibiting Westland from damaging the wall. Gus Machado Buick, Inc. bought Seipp and was substituted as a defendant. At trial the jury returned verdicts for Westland and Hialeah Skating Center against Machado for damages in excess of a million dollars.
In this appeal Machado contends that the court should have instructed the jury in accordance with a "water-as-a-common-enemy" theory which would have permitted a no-liability finding on Westland's claim.
The common-enemy rule is one of two diametrically opposed rules of law governing interference with the flow of surface waters. Annotation: Modern Status of Rules Governing Interference with the Drainage of Surface Waters, 93 A.L.R.3d 1193 (1979). It holds that a landowner is privileged to protect himself from surface water by any means without liability for the harm that he may inflict on other landowners. Brumley v. Dorner, 78 Fla. 495, 83 So. 912 (1919). The common-enemy rule is based on the principle that a property owner has an unlimited right to use his land as he pleases and its adherents believe that the rule promotes the development and improvement of real estate. Butler v. Bruno, 115 R.I. 264, 341 A.2d 735 (1975).
The second rule, the civil-law rule, provides that because water seeks its own Critics of the civil-law rule posit that strict application of the rule inhibits landowners from improving their land for fear that any improvement to the land is likely to change the material flow of surface waters, thereby creating liability for the altered flow onto the neighbor's land. Atchison, Topeka & Santa Fe Ry. v. Taylor, 87 F.Supp. 313 (E.D.Mo.1949).
level, naturally flowing from higher to lower ground, the owner of the land on the higher elevation has an easement over the lower elevation land for all water that naturally flows from the higher land. Libby, McNeil & Libby v. Roberts, 110 So.2d 82 (Fla. 2d DCA 1959). The owner of the lower land is not entitled to...To continue reading
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Westland Skating Center, Inc. v. Gus Machado Buick, Inc.
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