Hansen v. Gary Naugle Const. Co., 72631

• Citation: 801 S.W.2d 71
• Decision Date: 18 December 1990
• Docket Number: No. 72631,72631
• Parties: Dennis D. HANSEN, et al., Plaintiffs-Respondents, v. GARY NAUGLE CONSTRUCTION COMPANY, Defendant-Appellant.
• Court: United States State Supreme Court of Missouri

Page 71

801 S.W.2d 71

Dennis D. HANSEN, et al., Plaintiffs-Respondents, v. GARY NAUGLE CONSTRUCTION COMPANY, Defendant-Appellant.

No. 72631.

Supreme Court of Missouri,

En Banc.

Dec. 18, 1990.

Cullen Cline, Elizabeth E. Parrigin, Columbia, for defendant-appellant.

Ronald H. Bartlett, Columbia, for plaintiffs-respondents.

ROBERTSON, Judge.

Plaintiffs Dennis and Deborah Hansen and Morey and Wan-Tsih Chao brought suit against defendant, Gary Naugle Construction Company (Naugle), for damages allegedly sustained as a result of an increase in the volume and velocity of surface water runoff following Naugle's development of land lying uphill from plaintiffs' property. The trial court, without a jury, found Naugle liable for trespass and/or nuisance and awarded the Hansens and the Chaos $5,800 each in damages. The Court of Appeals, Western District, reversed. We granted transfer to consider the applicability of Missouri's modified common enemy doctrine to actions against land developers founded on nuisance and trespass. We have jurisdiction. Mo.Const. art. V, sec. 10. Reversed and remanded with directions to enter judgment for defendant.

I.

Because plaintiffs received a favorable verdict, we take plaintiffs' evidence as true, giving plaintiffs the benefit of all favorable inferences arising from that evidence. T.G.B. v. C.A.G., 772 S.W.2d 653 (Mo. banc 1989).

Prior to any development, all of the land at issue in this case belonged to Fred Coats, who operated a cattle farm on it. Coats testified that the land the developer purchased from him upon which plaintiffs' homes were constructed was part of a natural drainway. That developer filled the area with approximately eight feet of dirt and constructed the plaintiffs' homes on that fill. Indeed plaintiffs' First Amended Petition avers, among other things, that plaintiffs' damages "are the direct and proximate result of the conduct of Defendants in ... the channeling of surface waters [from Defendants' property] onto the natural drainage area."

The Chaos and the Hansens own houses on adjoining land on a cul-de-sac; the cul-de-sac is located near Merideth Branch, a creek that drains into Perche Creek and eventually into the Missouri River. Each purchased their property prior to Naugle initiating development on its property.

In 1981, Naugle purchased a 25-acre tract uphill from the plaintiffs' property. At the time of its purchase, Naugle's property consisted mostly of pasture land with some timber. Two natural ravines drained a large part of the Naugle acreage. These ravines, which remained dry except during times of rain or snow melt, originated east of the plaintiffs' properties and converged into a single ravine at a point approximately 300 feet east of the Chao property. After a moderately heavy rain, surface water flowed down the ravines, converged, and entered the Chao property, flowing across the Chao front lawn in a depression, or swale, the contour of which is built into the driveway and which was apparently fashioned by the builder of the Chao house to direct the flow of runoff. From the Chao property, the runoff continues through the swale across the Hansen property and into Merideth Branch.

In 1985, Naugle began developing 18 of the 25 acres. The development activities included improvement of the land by excavating, grading, removing surface vegetation, laying sanitary sewers, paving streets and constructing houses. Naugle also constructed four catch basins in the paved streets of the subdivision. Surface water collected by the catch basins emptied into the ravine through a 30-inch pipe. In addition, Naugle constructed two detention ponds on its property, designed to decrease the velocity of the flow of the surface water through the ravine. The larger of the two ponds was built at the point where the two smaller ravines converged. There, Naugle sculpted a berm, or small dam, intended to pool the water for release in a controlled flow through four 8-inch pipes at the base of the berm. Although defendants strongly disputed the evidence, plaintiffs' experts testified, the trial court found, and we take as true, that Naugle's development activities resulted in the velocity and volume of storm water runoff increasing by three times from that which was normally discharged over plaintiffs' land by virtue of the natural drainway patterns of Naugle's undeveloped land. The trial court also found that Naugle's collection and discharge of surface water occurred in such destructive and increased quantities as to constitute a trespass, or in the alternative, that Naugles' use of its land was unreasonable and created a nuisance resulting in damages to the plaintiffs.

II.

"The judgment of the trial court will be sustained ... unless there is no substantial evidence to support it, unless it is against the weight of the evidence, unless it erroneously declares the law, or unless it erroneously applies the law." Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976).

A.

The law considers surface water runoff a "common enemy" of all property owners. Haferkamp v. City of Rockhill, 316 S.W.2d 620 (Mo.1958), extensively tracks the evolution of the common enemy doctrine. We need not repeat that history here. It is sufficient for our purposes to note that in its original form, the common enemy doctrine permitted a property owner, as an incident to his right to use his own property, to fend off surface waters without consideration for the consequences to other landowners. Id. at 625. Many courts have found the rule too harsh and modified it somewhat. Thus, Haferkamp, which adopted a modified common enemy doctrine for use in Missouri, protects the owner of an upper tenement from liability to lower landowners for surface water runoff provided that (1) the discharge flows into a "natural drainway channel" located on his property "where the surface water from the drained areas would naturally go ... even though in doing so they [the upper landowner] might increase and accelerate the flow of surface water in its natural channel onto the lands of the plaintiff," id. at 627, and (2) the upper owner "acts without negligence and does not exceed the natural capacity of the natural drainway to the damage of the neighbor." Roberts v. Hocker, 610 S.W.2d 321, 327 (Mo.App.1980), citing Haferkamp.

B.

The trial court's judgment in this case is founded alternatively on trespass and nuisance. Trespass and nuisance are among the recognized exceptions to the common enemy doctrine. Hawkins v. Burlington Northern, Inc., 514 S.W.2d 593, 600 (Mo. banc 1974).

A trespass is a "direct physical interference with the person or property of another." Mawson v. Vess Beverage Co., 173 S.W.2d 606, 613 (Mo.App.1943). "The essence of the action is wrongful entry. Trespass has its origin in an intentional act, even though the actor may not intend to invade the property of another." Looney v. Hindman, 649 S.W.2d 207, 212 (Mo. banc 1983). Looney seems to say that a trespass action will lie only where the defendant undertakes some alteration of the natural drainage patterns for the purpose of altering those patterns. Id. 212-13. In the presence of that sort of proof, the " 'unauthorized entry' or 'invasion' or 'disturbance of possession' which is characteristic of trespass cases" is present and the owner of the upper tenement is liable for damages. Id.

Nuisance, on the other hand, is founded on an unreasonable, unusual or unnatural land use that substantially impairs the right of the owners of the lower tenement to enjoy their property peacefully. Frank v. Environmental Sanitation Management, Inc., 687 S.W.2d 876, 880 (Mo. banc 1985). Frank notes that "[n]uisance is an effect rather than a cause of tort liability and conduct antecedent to the interference may be irrelevant." Id.

C.

The dispositive question in this case is whether the unauthorized entry which is the hallmark of a trespass case, Looney, or the unreasonable land use which is the crux of nuisance, Frank, are present when a developer collects surface water on his own property and discharges it through and within the capacity of the natural drainway onto a lower tenement. The common enemy doctrine as applied in Missouri dictates: first, there can be no trespass when the owner of the upper tenement discharges water "where it would have gone anyway." Haferkamp, 316 S.W.2d at 627. Second, it is not an unreasonable use of an upper tenement--and thus not a nuisance--to undertake development of higher land unless the effect of such development becomes unreasonable because the upper landowner discharges water outside the natural drainway or discharges surface water onto the natural drainway in excess of the capacity of that drainway. Haferkamp, 316 S.W.2d at 626; Roberts, 610 S.W.2d at 327. Said another way, unless the plaintiff can show that the defendant has diverted the flow of surface water runoff out of its natural drainway or caused the accumulation of surface water runoff in such a way as to permit its discharge to exceed the capacity of the natural drainway, the common enemy doctrine defeats plaintiff's cause of action in trespass and nuisance for damages caused by surface water runoff.

D.

We turn now to the findings of fact entered by the trial court in this case to determine whether the trial court found such facts as to bring Naugle's alteration of the upper tenement within an exception to the common enemy doctrine as modified in Missouri.

The trial court found that Naugle altered the natural drainage patterns of the surface water on Naugle's land. This, of course, is assumed whenever a developer alters rough land by the grading, excavating and the construction of residences and the installation of streets and sewage systems. The trial court did not find, however, that the discharge from the Naugle property to the plaintiffs' property was outside the natural drainway. Indeed, the trial court found that the storm water runoff "increased...