King v. Adams

• Decision Date: 03 August 1977
• Citation: 349 So.2d 611
• Parties: O. D. KING v. Irene P. ADAMS. Civ. 1111.
• Court: Alabama Court of Civil Appeals

Page 611

349 So.2d 611

O. D. KING v. Irene P. ADAMS.

Civ. 1111.

Court of Civil Appeals of Alabama.

Aug. 3, 1977.

Rehearing Denied Sept. 14, 1977.

L. Wayne Collier, Montgomery, for appellant.

Scott Q. Kirkland of Alton, Leavell & Boggs, Montgomery, for appellee.

BRADLEY, Judge.

The parties to this appeal are coterminous landowners. Irene P. Adams sued O. D. King in the Circuit Court of Montgomery County for draining across her land two ponds located on his property, causing her property to flood. She alleged that as a consequence of his action she lost an opportunity to sell the property. After trial a jury returned a verdict in favor of Mrs. Adams, awarding her no compensatory damages but $500.00 punitive damages and ordering Mr. King to reseal the two ponds within eight months' time. Mr. King appeals.

The only question properly presented for decision is whether in an area outside a municipality an upper landowner owes a duty to a lower landowner to prevent surface water from flowing upon the lands of the latter.

The two properties in question are part of a natural watershed. The Adams property is the lowest in the area and thus serves as a catchment for surface water from surrounding lands. Mrs. Adams has owned the parcel of land which is the subject of the suit for about eight years; Mr. King has owned his for about four years.

When King purchased his property it contained two ponds which had existed over forty years. These ponds were not fed by a stream or well, but were constructed with dams so as to catch surface water falling onto the land or draining from other properties elevated above his. As a result of the two ponds and encircling dams, surface water which otherwise would have drained onto and across the Adams property was prevented from reaching the Adams property. A natural drainage ditch exists across the Adams property through which any water which reaches that parcel flows.

In August 1975 King decided to drain the ponds. The dams containing the two bodies of water were broken and the Adams land was flooded due to the heavy drainage for perhaps ten to twelve hours. Mr. and Mrs. Adams testified that their land has remained wet ever since the ponds were drained. A civil engineer who testified as an expert witness estimated the land would have remained wet from the drainage of the ponds for approximately ten days. However, since the dams and ponds are no longer collecting surface water from higher ground, that water now follows the natural contours of the watershed and drains into the ditch running across the Adams property, the same way water flowed before the ponds and dams were built. Any dampness along the ditch is due to natural drainage of the area and not to drainage from the two ponds, which are now dry except during periods of rain.

Mrs. Adams said that she had contracted with another person to sell her parcel of land for $10,000. When the property flooded, the contract of sale was cancelled by the prospective purchaser. Both Mr. and Mrs. Adams stated that the property is worth less now than it was before the ponds were drained, but neither could say how much less. The expert witness testified that the drainage of the ponds had not affected the value of the property in any way.

The two ponds were used primarily for fishing. Mr. King said the ponds had become so overgrown with weeds that fishing was impossible; he drained the ponds in order to clear the weeds and improve his property. Evidence adduced on behalf of the Adamses indicated that King drained the ponds in order to prevent Mrs. Adams from selling her property.

After Mrs. Adams had presented her case Mr. King moved for a directed verdict. This motion was denied. He now says that the trial court erred in denying his motion as to the equitable relief sought by Mrs. Adams. King's position is that since an upper landowner owes no duty to a lower landowner to maintain impediments which inhibit the natural flow of surface water to the benefit of the lower landowner, the trial court erred by requiring him to repair the dams to his ponds.

Our research discloses that the precise question raised by King has never been litigated in this state. The decision most directly on point is Powell v. Edwards, 237 Ala. 572, 187 So. 716 (1939). There a railroad embankment had for more than thirty years diverted the drainage of surface water flowing naturally down the slope of the terrain into a stream. When an increased flow of water began to wash away the embankment, the railroad cut two culverts through the embankment to lessen and disperse the flow of water. The plaintiff claimed his land was injured by the consequent flooding and deposits of soil and debris which washed down from the higher lands. The defendant responded by denying the plaintiff had a cause of action, since the culverts merely restored the natural flow of surface water which the railroad embankment had intercepted. The defendant's request for the affirmative charge was denied by the trial court. Relying on a single Iowa decision, the supreme court said:

"The mere fact that a lower proprietor has had the benefit of gratuitous improvements diverting the natural flow of waters away from his lands certainly confers on him no legal right to have such status quo maintained for his benefit. Brainard v. Chicago, R. I. & P. R. Co., 151 Iowa 466, 131 N.W. 649; 67 C.J. 875." 237 Ala. at 573, 187 So. at 717.

The trial court properly refused to give the affirmative charge, however, since it was possible that the installation of the culverts caused much greater damage than would have been the case had the natural flow of water not been interrupted. It was for the jury to determine what injury had been suffered by the plaintiff as a result of the railroad's action in cutting the culverts.

We conclude from this decision that although an upper landowner has no duty to protect a lower landowner from the flow of surface water, an upper landowner nonetheless may be responsible for damage sustained by the property of a lower landowner as a result of a change in the status quo. Although the court in Powell v. Edwards did not state a reason for its conclusion, that decision is clearly in line with the modified civil rule which the supreme court had adopted with regard to the flow of surface water in rural areas. See City of Mountain Brook v. Beatty, 292 Ala. 398, 404, 295 So.2d 388, 392 (1974). Therefore, we think Powell v. Edwards is controlling in the case at bar.

The civil rule with regard to the flow of surface water is based on the fact of nature that water seeks a lower level; thus, lower land is legally subservient to higher land to receive surface water which naturally flows from the higher to the lower. By contrast, under the common-law rule, surface water is regarded as a "common enemy" and a landowner may restrict or control such water in any way he deems necessary to protect his land, regardless of injury to adjacent property. See Cohen, Water Law in Alabama A Comparative Survey, 24 Ala.L.Rev. 453, 479 (1972); Surface Water Rights in Alabama, 10 Ala.L.Rev. 154 (1957). The supreme court in Hughes v. Anderson, 68 Ala. 280 (1880), combined both principles in a modified civil rule and held that the owner of higher land has an easement across...