Mason v. Lamb, Record No. 3469.
| Decision Date | 25 April 1949 |
| Docket Number | Record No. 3469. |
| Court | Virginia Supreme Court |
| Parties | HENRY W. MASON, ET ALS. v. T. R. LAMB. |
1. WATERS AND WATERCOURSES — Surface Waters — Evidence Insufficient to Show Liability under Common Law as Modified in Virginia — Case at Bar. — The instant case was an action seeking compensation for damages by surface water to a building and a business conducted therein. It was alleged that defendant, in filling his lot, had obstructed the natural flow of the surface water in a wanton, unnecessary and careless manner, causing it to back up and accumulate on plaintiffs' property, and that he had raised the level of his lot above that of the adjoining land and had graded the fill down to plaintiffs' property. Surface water from plaintiffs' and other adjoining properties had originally drained into a depression lying in part on defendant's land, and he had filled the depression preparatory to building. Upon completion of the fill the surface of his property at its highest point was approximately one foot higher than that of the adjacent lots, and some of the rain water which fell on it drained into that portion of the depression which remained on plaintiffs' and the other adjoining properties. The evidence showed that not all the water which caused the damage came from defendant's lot, but that part came from the adjacent lots and part from the roof of plaintiffs' building itself. The trial court sustained defendant's motion to strike plaintiffs' evidence and a verdict and judgment for defendant followed.
Held: No error. The Supreme Court of Appeals has adopted what is known as the modified common law rule or common enemy doctrine with respect to surface water, under which surface water is considered a common enemy and each landowner, in the improvement or protection of his property, may fight it off as best he can, subject to the qualification that he must exercise his rights not wantonly, unnecessarily, or carelessly, but in good faith and with such care as not to injure needlessly the property of the adjacent owner. Tested by these principles the evidence on behalf of plaintiffs failed to make out a cause of action.
2. WATERS AND WATERCOURSES — Surface Waters — Evidence Insufficient to Show Defendant Acted Wantonly, Unnecessarily or Carelessly in Filling Property — Case at Bar. — The instant case was an action seeking compensation for damage by surface water to a building and a business conducted therein. It was alleged that defendant, in filling his lot, had obstructed the natural flow of the surface water in a wanton, unnecessary and careless manner, causing it to back up and accumulate on plaintiffs' property. Surface water from plaintiffs' and other adjoining properties had originally drained into a depression lying in part on defendant's land, and he had filled the depression preparatory to building. Upon completion of the fill some of the rain water which fell on defendant's land drained into that portion of the depression which remained on plaintiffs' and the other adjoining properties. The evidence showed that not all the water which caused the damage came from defendant's lot, but that part came from the adjacent lots and part from the roof of plaintiffs' building itself. The trial court sustained defendant's motion to strike plaintiffs' evidence and a verdict and judgment for defendant followed.
Held: No error. The burden was on plaintiffs to show that in filling his lot defendant acted wantonly, unnecessarily, or carelessly, and the evidence failed to establish this. On the contrary, it showed that the lot was filled in and graded in the usual manner. To say that defendant had no right to fill in the depression in his lot, but that it should have remained as a basin for the drainage of surface waters from the adjacent properties, would deprive him of the use of his property despite the rule that he had the right to turn back the surface water at his boundary line.
3. WATERS AND WATERCOURSES — Surface Waters — Right of Landowner to Precipitate to Detriment of Another — Case at Bar. — The instant case was an action seeking compensation for damages by surface water to a building and a business conducted therein. It was alleged that defendant, in filling his lot, had obstructed the natural flow of the surface water in a wanton, unnecessary and careless manner, causing it to back up and accumulate on plaintiffs' property. Surface water from plaintiffs' and other adjoining properties had originally drained into a depression lying in part on defendant's land, and he had filled the depression preparatory to building. Plaintiffs suggested that defendant run a drainage ditch across their property to carry off the water which had formerly collected on his, but defendant failed to do so. Upon completion of the fill some of the rain water which fell on defendant's property drained into that portion of the depression which remained on plaintiffs' and the other adjoining properties. The evidence showed that not all of the water which caused the damage came from defendant's lot, but that part came from the adjacent lots and part from the roof of plaintiffs' building itself. Plaintiffs contended that defendant should have run the ditch.
Held: That there was no merit in the contention. Assuming that the ditch would have prevented the accumulation of the water, the obligation to construct it across plaintiffs' property, in order to drain the surface water therefrom, was on them and not on defendant, especially since a large part of the water of which plaintiffs' complained came from the roof of their own building.
4. WATERS AND WATERCOURSES — Surface Waters — Right of Urban Landowner to Precipitate to Detriment of Another. — Although there is authority to the contrary, it has been generally held, either pursuant to the common-law rule or as an exception to the civil-law rule, that the owner of a lot in a city or town may make changes or alterations in the surface thereof essential to its enjoyment regardless of the effect on the flow of surface waters, provided he has not been negligent.
5. WATERS AND WATERCOURSES — Surface Waters — Evidence Insufficient to Show Artificial Accumulation to Detriment of Others — Case at Bar. — The instant case was an action seeking compensation for damages by surface water to a building and a business conducted therein. It was alleged that defendant had raised the level of his lot above that of the adjoining land and had graded the fill down to plaintiffs' property. Defendant had filled a depression in his lot preparatory to building, and upon completion of the fill the surface of his property at its highest point was approximately one foot higher than that of the adjacent lots, and some of the rain water which fell on it drained into that portion of the depression which remained on plaintiffs' and other adjoining properties. The evidence showed that not all the water which caused the damage came from defendant's lot, but that part came from the adjacent lots and part from the roof of plaintiffs' building itself. Plaintiffs contended that the principle that an upper landowner, in the improvement of his property, has no right to collect surface water in an artificial channel and deposit it in concentrated volume upon the property of his neighbor at a lower level, applied.
Held: That the record made out no such case. Such water as fell on defendant's lot was not collected in an artificial drain and deposited in concentrated volume on plaintiffs' land. It was scattered and diffused over the comparatively level surface of the lot, whence, in seeking a lower level, it drained partly toward plaintiffs' property and partly elsewhere. This was merely the unavoidable consequence of the exercise by defendant of his legal right to improve his property in the usual and customary way.
Error to a judgment of the Circuit Court of the city of Norfolk. Hon. Clyde H. Jacob, judge presiding.
The opinion states the case.
Eastwood D. Herbert, for the plaintiffs in error.
Louis Lee Guy, for the defendant in error.
Henry W. Mason, Betty C. Mason, Mark A. Scott and Clara B. Scott, partners trading as Mercury Roller Rink, hereinafter called the plaintiffs, brought an action at law against the defendant, T. R. Lamb, seeking compensation for damages done to their building and to their business by surface water which it was alleged the defendant, in filling in a depression or low area on his lot, had wrongfully deflected onto the plaintiffs' land.
The notice of motion contained two counts: (1) that the defendant, in filling in his lot, had "obstructed" the natural flow of the surface water "in a wanton, unnecessary and careless manner," causing it to "backup" and accumulate on the property of the plaintiffs; and (2) that the defendant had raised the level of his lot above that of the adjoining land and had graded the fill down to the line of the plaintiffs' property, thereby negligently and unnecessarily pouring a great volume of surface water upon the plaintiffs' property.
At the trial, after the plaintiffs had concluded...
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