McNamara v. Rittman

• Decision Date: 07 January 1998
• Docket Number: No. 97CA0003,97CA0003
• Citation: 707 N.E.2d 967,125 Ohio App.3d 33
• Parties: McNAMARA et al., Appellants and Cross-Appellees, v. CITY OF RITTMAN, Appellee and Cross-Appellant. *
• Court: Ohio Court of Appeals

Page 33

125 Ohio App.3d 33

707 N.E.2d 967

McNAMARA et al., Appellants and Cross-Appellees, v. CITY OF RITTMAN, Appellee and Cross-Appellant. ^*

No. 97CA0003.

Court of Appeals of Ohio Ninth District, Wayne County.

Decided Jan. 7, 1998.

Steve J. Edwards, Grove City, and Andrew Hyde, Loudonville, for appellants and cross-appellees.

Jack R. Baker and Mel L. Lute, Jr., Canton, for appellee and cross-appellant.

BAIRD, Judge.

"This case involves over fifty homeowners that have been dewatered by the City of Rittman as a result of the City of Rittman's pumping of groundwater during the operation of its municipal wellfield." ¹

The appellants are homeowners and residents who live in and around the village of Sterling in Wayne County, Ohio. The appellants use wells to supply their household and domestic water needs. In 1973, the city of Rittman ("city") purchased a parcel of property near the village of Sterling. Preliminary studies were conducted and plans were approved for the drilling of three wells on the parcel. The wells were completed and placed into operation by 1980. Approximately five hundred thousand to seven hundred fifty thousand gallons of water a day are pumped from this wellfield to serve the needs of the city's residents.

On January 4, 1994, the appellants filed suit against the city, alleging that they suffered damages as a result of the city's use of the wellfield. Specifically, they claim that the aquifer from which they draw has been lowered due to the city's pumping of huge amounts of water, forcing them to endure water shortages and poor quality water, as well as forcing them to drill new wells and purchase new pumps and water-softening equipment. The appellants' first amended complaint asserts two claims. The first claim alleges that the city caused unreasonable harm to the appellants as a result of its pumping of groundwater from the wellfield. The second claim alleges that the appellants will suffer irreparable harm in the future and that the appellants have no adequate remedy at law. The appellants pray for both damages and an injunction. We will address the appellants' prayer for damages in the first part of this opinion, and the appellants' prayer for a permanent injunction against the city in the second part of this opinion.

The city denies that its use of the wellfield has caused appellants' problems. The city claims that most of the appellants' wells were shallow, with older narrow well casings and shallow well pumps. The city alleges that the redrilling of these wells was inevitable due to the age of the wells and the advent of newer technology.

The trial court granted the city's motion for partial summary judgment pursuant to R.C. 2305.09(D), which sets forth a four-year statute of limitations for property damage claims.

The city thereafter moved the court for summary judgment "as to all the claims of all the plaintiffs" based on sovereign immunity pursuant to R.C. 2744.02, Ohio's Political Subdivision Tort Liability Act. The trial court denied the motion. The morning of the trial, the court met with counsel, and learned that the appellants intended to present no evidence that the city was negligent in its operation of the wellfield. The trial court reconsidered and granted the city's motion for summary judgment pursuant to R.C. 2744.02, dismissing all the appellants' claims.

The appellants appeal from the granting of summary judgment, assigning three errors. The city cross-appeals, assigning two errors. We affirm.

I

For ease of discussion, we will address the appellants' third assignment of error and the city's second cross-assignment of error together in the first part of this opinion. The appellants' third assignment of error states:

"The trial court committed error by reversing itself and holding that defendant was entitled to summary judgment because of sovereign immunity under Revised Code Chapter 2744."

The city's second cross-assignment of error states:

"The trial court erred in failing to grant summary judgment in favor of the city of Rittman based on upon the discretionary provisions set forth in Revised Code § 2744.03(A)(3) and Revised Code § 2744.03(A)(5)."

These assignments of error require us to determine if and under what conditions a municipality's establishment and operation of a wellfield outside of its boundaries expose it to liability to individual homeowners and residents who are affected by such wellfield.

A. Summary Judgment

In reviewing a trial court's entry of summary judgment, an appellate court applies the same standard used by the trial court. Perkins v. Lavin (1994), 98 Ohio App.3d 378, 381, 648 N.E.2d 839, 840-841. Pursuant to Civ.R. 56(C), summary judgment is proper if "(1) no genuine issue as to any material fact remains to be litigated; (2) the moving party is entitled to judgment as a matter of law; and (3) it appears from the evidence that reasonable minds can come to but one conclusion, and viewing the evidence most strongly in favor of the nonmoving party, that conclusion is adverse to the nonmoving party." State ex rel. Howard v. Ferreri (1994), 70 Ohio St.3d 587, 589, 639 N.E.2d 1189, 1192.

Doubts must be resolved in favor of the nonmoving party. Horton v. Harwick Chem. Corp. (1995), 73 Ohio St.3d 679, 686, 653 N.E.2d 1196, 1201-1202. Since only legal questions exist, no special deference is to be afforded the trial court upon a review of an entry of summary judgment. Lorain Cty. Bd. of Commrs. v. United States Fire Ins. Co. (1992), 81 Ohio App.3d 263, 267, 610 N.E.2d 1061, 1063-1064. We will, therefore, review the matter de novo. Pennsylvania Lumbermens Ins. Corp. v. Landmark Elec., Inc. (1996), 110 Ohio App.3d 732, 743, 675 N.E.2d 65, 73; Tyler v. Kelley (1994), 98 Ohio App.3d 444, 446, 648 N.E.2d 881, 882. In viewing disputed evidence, we construe all facts in the nonmoving party's favor. Turner v. Turner (1993), 67 Ohio St.3d 337, 341, 617 N.E.2d 1123, 1126-1127.

The burden of showing that no genuine issue of material fact exists falls upon the party requesting summary judgment, and is specified in Dresher v. Burt (1996), 75 Ohio St.3d 280, 293, 662 N.E.2d 264, 274:

"The moving party cannot discharge its initial burden under Civ.R. 56 simply by making a conclusory assertion that the nonmoving party has no evidence to prove its case. Rather, the moving party must be able to specifically point to some evidence of the type listed in Civ.R. 56(C) which affirmatively demonstrates that the nonmoving party has no evidence to support the nonmoving party's claims. If the moving party fails to satisfy its initial burden, the motion for summary judgment must be denied. However, if the moving party has satisfied its initial burden, the nonmoving party then has a reciprocal burden outlined in Civ.R. 56(E) to set forth specific facts showing that there is a genuine issue for trial and, if the nonmovant does not so respond, summary judgment, if appropriate, shall be entered against the nonmoving party." (Emphasis sic.)

These principles were reaffirmed in Vahila v. Hall (1997), 77 Ohio St.3d 421, 429, 674 N.E.2d 1164, 1170-1171. The moving party is required to state the basis for his motion and then point to "pleadings, depositions, answers to interrogatories, written admissions, affidavits, transcripts of evidence in the pending case, and written stipulations of fact, if any," which support the motion. Civ.R. 56(C). Merely alleging that a nonmoving party lacks evidence does not satisfy this obligation. See Kulch v. Structural Fibers, Inc. (1997), 78 Ohio St.3d 134, 147, 677 N.E.2d 308, 318-319.

We initially note that the trial court must base its grant of a motion for summary judgment on evidence meeting the standards of Civ.R. 56(C), quality evidence, not on statements counsel makes to the court regarding what a party intends or does not intend to prove. Therefore, we must examine the evidence submitted with the city's motion for summary judgment and determine whether, based on that evidence, summary judgment in favor of the city was appropriate.

B. Water Rights in Ohio

It is clear that Ohio now recognizes a cause of action for "unreasonable dewatering." Until 1984, Ohio applied a rule regarding water rights dating back to the era of the Civil War. Frazier v. Brown (1861), 12 Ohio St. 294, 1861 WL 32, overruled by Cline v. Am. Aggregates Corp. (1984), 15 Ohio St.3d 384, 15 OBR 501, 474 N.E.2d 324. In Frazier, supra, at 308, the Supreme Court of Ohio held:

"There are no correlative rights existing between the proprietors of adjoining lands, in reference to the use of such water in the earth, or percolating under its surface. Such water is to be regarded as part of the land itself, to be enjoyed absolutely by the proprietor within whose territory it is; and to the law governing the use of running streams is inapplicable."

The Frazier court further stated:

"In the absence of express contract, and of positive authorized legislation, as between proprietors of adjoining lands, the law recognizes no correlative rights in respect to underground waters percolating, oozing or filtrating through the earth[.]" Id. at 311.

This was the law in Ohio until 1984, when the Supreme Court of Ohio reconsidered the common law as it applied to groundwater in Cline, 15 Ohio St.3d 384, 15 OBR 501, 474 N.E.2d 324. In Cline, American Aggregates Corporation operated a sand and gravel quarry. The quarrying procedure involved pumping water from the pits created by the operation. Several landowners sued American Aggregates, claiming that their wells had been "dewatered" and polluted as a result of American Aggregates' operation. In overruling Frazier and its progeny and in adopting Section 858 of the Restatement of the Law 2d, Torts (1977), the court specifically held the following:

"(1) A proprietor of land or his grantee who withdraws ground water from the land and uses it for a beneficial purpose is not subject to liability for interference with...