MD Mall Assocs., LLC v. CSX Transp., Inc.

• Citation: 288 F.Supp.3d 565
• Decision Date: 22 December 2017
• Docket Number: CIVIL ACTION No. 11–4068
• Parties: MD MALL ASSOCIATES, LLC v. CSX TRANSPORTATION, INC.
• Court: United States District Courts. 3th Circuit. United States District Court (Eastern District of Pennsylvania)

288 F.Supp.3d 565

MD MALL ASSOCIATES, LLC

v.CSX TRANSPORTATION, INC.

CIVIL ACTION No. 11–4068

United States District Court, E.D. Pennsylvania.

Signed December 22, 2017

Marc B. Kaplin, Pamela Tobin, Kaplin, Stewart, Meloff, Reiter and Stein, P.C. Union Meeting Corp. Ctr., Blue Bell, PA, for MD Mall Associates, LLC.

Sharon L. Caffrey, Patrick John Kearney, Jr., Duane Morris LLP, Philadelphia, PA, for CSX Transportation, Inc.

MEMORANDUM

Juan R. Sánchez, District Judge.

This case involves a dispute between neighboring property owners: a shopping mall and a railroad. Plaintiff MD Mall Associates, LLC, t/a MacDade Mall Associates, L.P., owns and operates the MacDade Mall, a shopping center located on property adjacent to and downhill from a railroad track and right-of-way owned and operated by Defendant CSX Transportation, Inc. During heavier rains, storm water pools at the outer edges of the right-of-way on either side of the track and flows onto the Mall's property from a stretch of the right-of-way near the eastern end of the parties' shared property line, flooding the southeast corner of the Mall parking lot. Although the current flooding pattern appears to have arisen only within the past decade or so, the Mall seeks to hold CSX liable for the flooding on the theory that the construction of the railroad track more than a century ago—and decades before the Mall itself was constructed—changed the flow of surface water on the right-of-way, channeling the water into swales from which it discharges in concentrated form onto the Mall property. The Mall also argues the current flooding problem is attributable to CSX's negligent maintenance of the right-of-way in recent years. CSX denies liability, arguing it has done nothing to alter the natural course of the surface water, which continues to flow from higher to lower ground, and that the Mall's flooding problem is instead attributable to unmanaged excess flow from the uphill residential neighborhood on the opposite side of the railroad track from the Mall. Following a four-day bench trial, which included a site visit to the area in question, the Court issues the following findings of fact and conclusions of law pursuant to Federal Rule of Civil Procedure 52(a). Because the Mall has not satisfied its burden to prove by a preponderance of the evidence that CSX is liable for the flooding under either a continuing trespass or a negligence theory, judgment will be entered in favor of CSX.

FINDINGS OF FACT¹

A. The Existing Topography of the Area in Question

Plaintiff owns the MacDade Mall, a shopping center located in Delaware County, Pennsylvania. The Mall property is bounded by streets on three sides: MacDade Boulevard to the north, Glenside Avenue to the west, and South Avenue to the east. See Ex. 52. A railroad right-of-way and track owned by CSX run along the entire southern border of the Mall property.² The railroad track crosses South Avenue at a railroad crossing located just beyond the southeast corner of the Mall property.

The railroad right-of-way is situated between the Mall to the north and a residential neighborhood to the south. The right-of-way sits on higher ground than the Mall and on lower ground than the residential neighborhood, which slopes upward from the right-of-way.

A single railroad track runs through the center of the right-of-way. The track is elevated on a bed of compacted stone ballast, which sits atop a bed of compacted earth known as hard pan. See Ex. 42 at 64–65; see also Ex. 37 at 63–64. The bed of ballast supporting the track slopes away from the track at an angle on either side, toward the hard pan surface of the right-of-way. See Ex. 37 at 68–70; Ex. 42 at 65.

The ballast serves both structural and drainage functions. Structurally, the ballast keeps the track level and elevated, see Ex. 42 at 56, and the sloping of the ballast on either side of the track serves to prevent the track from moving, see Ex. 37 at 83. Because the ballast is porous by design, storm water can flow through it. Trial Tr. 74, Dec. 14, 2015; Trial Tr. 179, Dec. 15, 2015; see also Trial Tr. 120, Dec. 15, 2015. The ballast thus ensures that water drains away from the track and onto the surface of the right-of-way where it flows to the nearest low point. See Ex. 42 at 26–27, 56; Ex. 37 at 82, 128–29.

Alongside the sloped ballast, the surface of the right-of-way is generally flat in appearance, see, e.g. , Trial Tr. 105, Dec. 15, 2016 (Browne) (characterizing the land alongside the elevated ballast as "flat property"); id. at 125 (agreeing the area around the track is "really flat"), though recent topographic maps of an approximately 120–foot stretch of the right-of-way and adjacent Mall property west of South Avenue reveal slight undulations.³

On either side of the track, the surface of the right-of-way slopes slightly downward to a low point running generally parallel to the track close to the property line,⁴ then slopes upward onto the adjacent property. See Ex. 8, sheets 1–3. The ground on the south side of the track is generally flatter and higher than the ground on the north side of the track. See id.

On the north side of the track, the high point between the track and the Mall is almost entirely on the Mall property, as is most of the upslope to that high point.⁵ From the high point on the Mall property, the ground descends down a short hill to the Mall parking lot. The mounded area at the top of the Mall hill—referred to throughout this litigation as a "berm"⁶ —is lined with trees and bushes.

On the south side of the track, the land slopes upward from the low point on the right-of-way toward the residential neighborhood further to the south.⁷

The ground along the low point on the north side of the track drops very slightly in elevation from west to east along the surveyed portion of the right-of-way, then rises again closer to the railroad crossing. See Ex. 8, sheets 1–3 (showing a slight west-east decline in elevation from a high of 95.62 feet to a low of 95.5 feet, then an increase to a high of about 98 feet). On the south side of the track, the low point generally increases slightly in elevation from west to east. See id. (showing a slight west-east increase in elevation from a low of 96.07 feet to a high of 97 feet).

The slight undulations in the surface of the right-of-way and the adjacent ground create mild depressions at the outer edge of the right-of-way on either side of the track. Although the parties have referred to these mild depressions as "swales" or "drainage swales" throughout this litigation, at trial, Dr. Browne indicated that, in fact, he does not believe swales were ever constructed because "a swale is defined kind of as somewhat of a concave type of thing," and the right-of-way next to the track is essentially flat. See Trial Tr. 105, 125–26, Dec. 15, 2015; see also id. at 74–75.

B. The Current Flooding Problem on the Mall Property

Since at least 2010—and perhaps even earlier⁸ —the Mall has experienced flooding in the southeast corner of the Mall property during heavier rains.

During significant rain events,⁹ storm water pools in the mild depressions at the outer edges of the right-of-way on either side of the track.

Although the surface of the right-of-way is "fairly flat," on the north side of the track, the pooling water flows in an easterly direction toward the railroad crossing at South Avenue. See Trial Tr. 33–34, 48–49, Dec. 14, 2015. The elevation at South Avenue is higher than on the right-of-way, and prevents the water from continuing eastward as it approaches the railroad crossing. See id. at 49. Instead, before reaching the crossing, the water flows in a northerly direction onto the lower-lying Mall property.¹⁰ See id. at 33–34, 48–49.

The water that pools on the south side of the track contributes to the flooding on the Mall property in that, as the water accumulates on the south side, it flows through the ballast supporting the track onto the north side of the right-of-way and, ultimately, onto the Mall property.¹¹ See Trial Tr. 73–74, Dec. 14, 2015; Trial Tr. 178, Dec. 16, 2015.

An open-ended drainage pipe extends onto the right-of-way from the back of a storm water inlet that sits below grade in the west side of South Avenue, just south of the railroad crossing. See Ex. 8, sheet 2; Trial Tr. 67–68, Dec. 14, 2015. Because the pipe lacks any kind of protective covering, it has become clogged with dirt and debris. See Trial Tr. 72–73, Dec. 14, 2015. The inlet to which the pipe connects is also clogged. See Trial Tr. 72–73, Dec. 14, 2015; Trial Tr. 212, Dec. 15, 2015.

Although the pipe may convey some of the water that collects on the south side of the right-of-way into the public storm water system along South Avenue, because of the clogged condition of both the pipe and the inlet, the pipe functions at a greatly reduced capacity. See Trial Tr. 73–74, Dec. 14, 2015; Trial Tr. 110, Dec. 15, 2015; Trial Tr. 62, Dec. 16, 2015.

The clogged condition of the inlet contributes to the flooding problem on the Mall property in that, during significant rain events, some of the storm water flowing north on South Avenue bypasses the inlet and flows onto the right-of-way. See Trial Tr. 212–14, Dec. 15, 2015.

A significant portion of the storm water that comes onto the right-of-way comes from the upgradient residential development to the south of the right-of-way.

The Mall's expert, Dr. Browne, opined that 42 percent of the water that comes onto the south side of the right-of-way comes from the residential neighborhood. Trial Tr. 110, Dec. 15, 2015. According to CSX's expert, Mr. Bross, the residential neighborhood is the source of 85 percent of the storm water on the right-of-way. Trial Tr. 219, Dec. 15, 2015; Trial Tr. 43–44, Dec. 16, 2015. Neither opinion is fully credible.

Dr. Browne's estimate understates the actual amount of water that comes onto the right-of-way from the residential neighborhood because his calculations incorrectly assume that water from...