Pierce Family, Inc. v. Magness Const. Co.

• Decision Date: 17 October 1967
• Citation: 43 Del.Ch. 425,235 A.2d 268
• Parties: PIERCE FAMILY, INC., a Delaware corporation, S. Gilbert Pierce, Nellie May Pierce, John E. Pierce and Mabel B. Pierce, Plaintiffs Below, Appellants, v. MAGNESS CONSTRUCTION COMPANY, a Delaware corporation, and Cedar Inn, Inc., a Delaware corporation, Defendants Below, Appellees.
• Court: Supreme Court of Delaware

Page 268

235 A.2d 268

43 Del.Ch. 425

PIERCE FAMILY, INC., a Delaware corporation, S. Gilbert Pierce, Nellie May Pierce, John E. Pierce and Mabel B. Pierce, Plaintiffs Below, Appellants, v. MAGNESS CONSTRUCTION COMPANY, a Delaware corporation, and Cedar Inn, Inc., a Delaware corporation Defendants Below, Appellees.

Supreme Court of Delaware.

Oct. 17, 1967.

Appeal from the Court of Chancery in and for New Castle county.

Abraham Hoffman, of Hoffman & Hoffman, Wilmington, for appellants.

Clement C. Wood, of Allmond & Wood, Wilmington, for appellees.

WOLCOTT, C.J., and CAREY and HERRMANN, JJ., sitting.

WOLCOTT, Chief Justice.

This is an appeal from the Court of Chancery which denied the plaintiffs an injunction against an alleged impeding of the natural flow of water from their land.

Plaintiffs are the owners of lands in Brandywine Hundred. The natural drainage of water from these lands in into Naaman's Creek by streams flowing through land owned by the defendant, Cedar Inn, Inc., and developed by the defendant, Magness Construction Company, by filling and the erection of apartment buildings. In the course of filling these lands, Magness blocked the streams and installed a 24-inch pipe to carry off the water.

Plaintiffs claim that while the drainage provided by defendants may be sufficient to discharge the present rate of flow from their lands and other lands higher up the watershed in their present undeveloped state, it will become insufficient in the future if the higher land is developed, since this will result in an increased flow of water. In that event, it is argued the water will back up upon the plaintiffs' land to their damage.

The Vice Chancellor denied relief after finding the fact to be that the installed drainage facilities are adequate to meet the present drainage requirements of the plaintiffs' land. He held that the lower land could not be forced to provide facilities to take care of an increased burden by reason of future development of the upper land, and that in any event equity will not issue an injunction by reason of mere apprehension that at some future time damage will occur.

The point before us is whether or not an upper landowner can compel a lower landowner to provide drainage facilities to carry off an amount of water increased artificially above the natural drainage level.

Generally speaking, a landowner is bound not to interfere with the natural flow of water from higher land upon his own, and at the same time has the right to have the natural flow pass from his land upon the lower land of another without interference. 56 Am.Jur., Waters, § 13; 93 C.J.S. Waters § 15; 3 Tiffany, Real Property (3rd Ed.), § 731. It follows from the general principle that a lower owner may not artificially obstruct the natural flow of water upon his land so as to cause the water to back up and flood the land of an upper owner. 93 C.J.S. Waters § 24; 56 Am.Jur., Waters, § 68. It also follows that an upper owner may not artificially increase the flow of water upon lower lands above its natural volume. 3 Tiffany, Real Property (3rd Ed.), § 734; 56 Am.Jur., Waters, § 71.

The general rules set forth above have been the law of this State. E. J. Hollingsworth Co. v. Jardel Co., 40 Del.Ch. 196, 178 A.2d 307; Ciconte v. Shockley, 31 Del.Ch. 376, 75 A.2d 242; Staats v. Hubbard, 31 Del.Ch. 41, 63 A.2d 856; Chorman...