Klutey v. Com., Dept. of Highways

• Decision Date: 08 December 1967
• Citation: 428 S.W.2d 766
• Parties: Carlton N. KLUTEY et al., Appellants, v. COMMONWEALTH of Kentucky, DEPARTMENT OF HIGHWAYS, Appellee.
• Court: United States State Supreme Court — District of Kentucky

Page 766

428 S.W.2d 766

Carlton N. KLUTEY et al., Appellants, v. COMMONWEALTH of Kentucky, DEPARTMENT OF HIGHWAYS, Appellee.

Court of Appeals of Kentucky.

Dec. 8, 1967.

As Modified on Denial of Rehearing June 14, 1968.

John L. Dorsey, Jr., Dorsey & Sullivan, Henderson, for appellants.

Robert Matthews, Atty. Gen., H. C. Smith, Asst. Atty. Gen., Frankfort, M. T. Quinton, Jr., Madisonville, for appellee.

CLAY, Commissioner.

This action was brought by the Commonwealth to enjoin appellants from maintaining embankments on their property which diverted the flow of water from two drainage pipes under a new highway constructed in the City of Henderson. Appellants counterclaimed and sought an injunction against the Commonwealth. The Chancellor found in favor of the latter.

Appellants owned a 70-acre tract. The Commonwealth condemned an 8-acre strip running from north to south for the construction of a limited access highway. This left a landlocked area of 8 acres on the east side of the highway. When it was constructed, two drainage pipes were built to carry water from the east side to the west side. One was 24 inches in diameter and the other 18 inches. Water flowing through these pipes was cast onto appellants' land on the west. Appellants claim that by virtue of the accelerated flow deep ditches were cut in their property and a flooding condition was created.

To stem the tide appellants built embankments opposite the western openings of these two drainage pipes, thereby backing water up on the highway. It is these embankments the Chancellor ordered removed. It is appellants' contention that the Commonwealth had no right to cast this surface water on their land through the drainage pipes and they requested an injunction compelling the Commonwealth to channel the flow in a different direction.

There is a sharp issue of fact as to whether, prior to the construction of the highway, surface waters naturally drained from land on the east to appellants' property in the area where the 24-inch pipe is located. Appellants' evidence was that there was no east-west natural drainage at this point. On the other hand, witnesses for the Commonwealth testified that prior to the construction of the highway there was a drainage ditch ranging from one to four feet in depth at this point and that an area of approximately 8 acres to the east drained onto appellants' land. On the basis of testimony and topographical and engineering maps the Chancellor found there had been a natural flow of surface water onto appellants' land at this point. Since there was substantial credible evidence to support this finding, we cannot say it was clearly erroneous.

With respect to the 18-inch pipe, admittedly the natural drainage at that point was from east to west on a gentle slope. However it is clear that the drainage pipe substantially accelerated the flow. The same may be said about the 24-inch pipe. It may be pointed out that as a result of appellants' protests, the Commonwealth partially sealed the eastern end of the 24-inch drainage pipe so that instead of draining an area of 8 acres it now accommodates a flow from an area of something over one acre.

On the theory that there was no natural drainage onto appellants' land at the point of the 24-inch pipe, appellants contend the Commonwealth has changed the direction of the natural flow and has in effect tapped addtional territory and subjected their property to an additional servitude. The finding of the Chancellor with respect to the natural drainage course answers that argument.

The additional argument is made, however, that the Commonwealth had no right with either pipe to so accelerate the flow of water as to cause the serious damage of which appellants complain. Their evidence was to the effect they had never had a drainage problem before but after the highway was constructed the discharge from the 24-inch pipe caused a flooding condition and the discharge from the 18-inch pipe was cutting a deep gorge through their land. The Chancellor apparently took the view that since the Commonwealth was not tapping an additional source of surface water, it had the right to accelerate the flow by the construction of drainage pipes without regard to the damage caused. (The Chancellor also intimated that in the prior condemnation suit appellants had been compensated for the potential water damage that would be caused by the construction of the highway, a matter we will discuss later in this opinion.) Reliance was placed upon Wallace v. Schneider, 310 Ky. 17, 219 S.W.2d 977. The difficult question presented, which has both legal and equitable aspects, requires a re-examination of surface water rights in Kentucky.

We will assume (as do the parties) that the Commonwealth stands in the position of an adjoining property owner. The conflicting rights of such parties at an earlier time led to the development of two doctrines which were almost diametrically opposed. Under the 'common enemy' doctrine each landowner had the right to dispose of surface water on his land in any manner he saw fit, regardless of the adverse consequences to his neighbor. Under the 'civil law' doctrine, while the lower owner was bound to accept natural drainage from the upper owner, the upper owner had no right, by artificial means, to change or increase the normal flow. It was soon found that the strict application of either doctrine would often cause an inequitable result as between the parties, and neither theory took into account the socially desirable uses of the property or the extent of damage one property owner might cause his neighbor. For this reason exceptions and modifications gradually infused the doctrines and there evolved a flexibility in their application. For a history of the developments in this field, attention is called to 59 A.L.R.2d 421.

In one of our earlier Kentucky cases, Pickerill v. City of Louisville, 125 Ky. 213, 100 S.W. 873, we purported to adopt the 'civil law' doctrine, although the opinion recognizes that formerly the 'common law' ('common enemy') principle had been applied. That case involved a situation (which naturally develops under the 'common enemy' concept), quite similar to the one before us, where the upper property owner ditches his land to rid himself of surface water and the lower owner, to avoid the consequences, throws the water back by obstructing the flow with an artificial embankment. In the opinion we stated the rule to be (page 876 of 100 S.W.):

'* * * the owner of the upper ground has no right to make excavations, barriers, or drains upon his ground by which the flow of surface water is diverted from its natural channel and a new channel made on the lower ground, nor can he collect into one channel waters usually flowing off into his neighbor's land by several channels, and thereby increase the flow upon the lower ground.'

The same principle was followed in Gott v. Franklin, 307 Ky. 466, 211 S.W.2d 680, where we held the plaintiff had no right by artificial means (the tiling of a garden) to collect water and cause it to flow onto neighboring property in accelerated and larger quantities. Here again we substantially applied the 'civil law' doctrine.

The following year the case of Wallace v. Schneider, 310 Ky. 17, 219 S.W.2d 977, was decided. There the defendant, in establishing a subdivision, graded the land, built roads, gutters and sewers, and thereby accelerated the flow of water onto plaintiff's property. The applicable law was thus stated (page 980 of 219 S.W.2d):

'The owner of the dominant estate may drain and ditch his land for the purpose of ridding it of surface water even to the extent of building sewers, gutters, and culverts without liability to the owner of the servient estate, even though such methods of ridding his own property of surface water causes such water to be accelerated in its flow onto the servient estate, so long as he does not tap additional territory from which surface waters otherwise would not have flowed through the natural drain in which the ditches, gutters, sewers, or culverts are constructed.' (Emphasis added)

This would appear to be a modified 'common enemy' doctrine.

In the later case of Rutherford v. Louisville & Nashville R. Co., Ky., 243 S.W.2d 1017, the defendant railroad company had dug a new ditch, or widened an old one, on its right-of-way, whereby a greatly accelerated flow of water was channeled through a 24-inch culvert emptying into a ditch on property adjoining the plaintiff's land and caused a flooding condition. We held the defendant could not unreasonably subject plaintiff's property to a servitude involving more than the absorption of the natural flow of water, and the owner of the lower estate could recover damages from the owner of the upper estate (page 1018 of 243 S.W.2d):

'* * * if the latter unreasonably changes the natural course of the water or causes it to collect and be cast upon the lower estate in an unnatural volume or in an unusual or swift stream; * * * or if he collects in one channel waters usually flowing onto his neighbor's land by several channels and thereby increases the flow on the lower ground.' (Emphasis added)

It will be noted this opinion uses the terms 'unreasonably', 'unnatural' and 'unusual.' Our prior opinions had not made reference to such factors. Recognition of their significance established a middle ground principle between the 'common enemy' doctrine (which favors the upper owner) and the 'civil law' doctrine (which favors the lower owner). In the recent case of Commonwealth, Dept. of Highways v. Robbins, Ky., 421 S.W.2d 820, we determined that the Commonwealth had 'unreasonably' diverted surface water from its natural course of drainage. Thus in Kentucky we have developed a 'reasonable use' rule, which is followed in other states. See Bassett v. Salisbury Mfg. Co., 43 N.H. 569, 82 Am.Dec. 179; Bush v. City of Rochester, 191 Minn. 591, 255 N.W. 256; Armstrong v. Francis...