Johnson v. Whitten

• Decision Date: 21 April 1978
• Citation: 384 A.2d 698
• Parties: Kittridge A. JOHNSON and Bernice B. Johnson v. Alvin R. WHITTEN.
• Court: Maine Supreme Court

Page 698

384 A.2d 698

Kittridge A. JOHNSON and Bernice B. Johnson v. Alvin R. WHITTEN.

Supreme Judicial Court of Maine.

April 21, 1978.

Libhart, Ferris & Dearborn by Joel A. Dearborn (orally), Ellsworth, for plaintiffs.

Robinson, Hunt & Kriger by Sarah M. Allison (orally), Stephen Staples, M. Roberts Hunt, Portland, for defendant.

Before POMEROY, WERNICK, ARCHIBALD, DELAHANTY, GODFREY and NICHOLS, JJ.

WERNICK, Justice.

On February 14, 1973, plaintiffs Kittridge A. Johnson and Bernice B. Johnson brought a civil action in the Superior Court (Hancock County) against defendant Alvin R. Whitten, claiming that defendant should respond to them in damages for having caused flooding of their land. The case was tried before a jury in December, 1976. At the conclusion of the evidence defendant moved for a directed verdict in his favor, and the motion was granted. Plaintiffs have appealed from the judgment entered for defendant.

We deny the appeal.

Plaintiffs and defendant are abutting landowners in Winter Harbor. Plaintiffs' complaint sought relief on the ground that in 1969 plaintiffs' land became flooded after defendant had deposited fill on his own land which, allegedly, ". . . interfered with and dammed the natural drainage from the land of the plaintiffs."

Taken most favorably to plaintiffs, the evidence warranted findings of these facts. The land topography caused water to drain naturally from northeast to southwest, moving first across plaintiffs' property and then across defendant's property. Prior to 1969, the land in back of plaintiffs' house consisted of a wooded area and a foot path frequently used for passage to neighboring property. Although in the spring or fall, after heavy rains or the melting of snow, some water drained across plaintiffs' land, there was no serious problem from accumulations of water, and the land was always passable. However, the land behind the houses of plaintiffs and defendant was lowlying and, generally, was not completely dry. In 1969, defendant filled a portion of his land adjoining plaintiffs', constructing a barrier or roadway which impeded the natural flow of drainage. Shortly thereafter, water backed up and plaintiffs experienced flooding in the basement of their house and on their surrounding land, especially at the time of heavy rains.

Plaintiffs assert that the presiding Justice misconceived the law of Maine by his refusal to recognize that defendant's impeding, or diverting, the drainage of surface water could be a legal basis for defendant's liability to plaintiffs. In support of their contention plaintiffs rely upon McRae v. Camden & Rockland Water Co., 138 Me. 110, 22 A.2d 133 (1941) and Goodwin v. Texas Co., 133 Me. 260, 176 A. 873 (1935).

These cases, however, are plainly distinguishable. McRae involved one landowner's collecting of water in a pit dug under a valve house. When, subsequently, the landowner unsuccessfully attempted to repair a defective drainage system, he caused the non-natural collection of water in the pit to be discharged upon the adjoining property on which the water would not otherwise have fallen naturally. Goodwin, too, involved the artificial collection of water by construction of a bulkhead on flats owned by The Texas Co., to be accomplished by filling the shore with dredgings pumped from the ocean floor. The dredgings were to be contained by a gravel dam designed to hold the mud and water in place. After the area enclosed by the gravel dam was filled some of the sea water contained in the mud overflowed upon adjacent property. See also Smith v. Preston, 104 Me. 156, 71 A. 653 (1908) (involving the obstruction of sidewalks by an accumulation of ice resulting from water artificially collected and discharged from a defective gutter of defendant's building).

In the case at bar defendant had not thus artificially collected water on his own land which was discharged upon the land of plaintiffs where it would not otherwise naturally have fallen. Rather, here, defendant erected a solid non-water barrier on his own land which caused the natural drainage of surface water to back up on plaintiffs' land.

Absent an artificial collection of water which is discharged, Maine law recognizes no liability as arising, per se, merely from the obstruction, or diversion, of the natural drainage of surface water. As stated in Morrison v. Bucksport & Bangor R. R. Co., 67 Me. 353, 355-356 (1877):

"(I)t is well established that any proprietor of land may control the flow of mere surface water over his own premises, according to his own wants and interests, without obligation to any proprietor either above or below. . . . He may prevent surface water from coming upon his land according to its accustomed flow, whether flowing thereon from a highway or any adjoining land. Bangor v. Lansil . . . (51 Me. 521 (1863)). He may prevent its passing from his land in its natural flow. . . . He may erect structures upon his own land as high as he pleases without regard to its effect upon surface water, no matter how much others are disturbed by it."

See also Pettengill v. Turo, 159 Me. 350, 193 A.2d 367 (1963). The rule derives from the fundamental principle that a property owner may use his land as he pleases for all lawful purposes.

A major limitation on this right has been recognized when a watercourse has come into being, but the very acknowledgement of the limitation emphasizes the distinction between surface waterdrainage and a watercourse. As was clarified in Morrison v. Bucksport & Bangor R. R. Co., supra at 356:

"A water course cannot be stopped up or diverted to the injury of other proprietors. There is a public or natural easement in such a stream, belonging to all persons whose lands are benefitted by it. The two things,...