Ritchhart v. Gleason

• Decision Date: 05 March 1996
• Docket Number: No. 95CA2092,95CA2092
• Citation: 672 N.E.2d 1064,109 Ohio App.3d 652
• Parties: RITCHHART et al., Appellees, v. GLEASON et al., Appellants.
• Court: Ohio Court of Appeals

Page 652

109 Ohio App.3d 652

672 N.E.2d 1064

RITCHHART et al., Appellees, v. GLEASON et al., Appellants.

No. 95CA2092.

Court of Appeals of Ohio Fourth District, Ross County.

Decided March 5, 1996.

Samuels & Northrop Co., L.P.A., and Joseph M. Reidy, Columbus, for appellees.

Richard M. Wallar, Logan, for appellants.

KLINE, Judge.

Plaintiffs-appellees, Wayne B. Ritchhart and Renick R. Ritchhart, filed a complaint against defendants-appellants, Gary L. Gleason and Elaine Gleason, seeking to permanently enjoin appellants from discharging effluent from appellants' waste water treatment plant into a ditch ¹ traversing appellees' property. The Ross County Court of Common Pleas granted the injunction and appellants appeal from that judgment.

Appellants assign the following errors:

"I. The trial court's finding that an 'intermittent stream' was a 'private ditch' was against the manifest weight of the evidence.

"II. The trial court erred in granting plaintiffs a temporary and permanent injunction because the evidence did not establish any harm to plaintiffs and the court applied the wrong standard to trespass since the appellants have riparian rights to discharge water into an 'intermittent stream' running through the plaintiffs' property.

"III. Appellants have been unconstitutionally deprived of their property rights by the court's denial of due process, and denied equal protection of the laws in denying them the right to exercise their right to discharge properly treated effluent into an intermittent stream which is both waters of the United States and waters of the state of Ohio."

Appellants purchased the land adjacent to appellees' property with the intention of establishing a mobile home park. To further their plan, appellants borrowed $480,000 to purchase and install a waste water treatment plant to treat the sewage from the mobile home park. Appellants applied for and received all of the applicable permits from the Ohio Environmental Protection Agency ("OEPA") necessary to operate this plant. ² Appellants proposed to discharge the effluent from this waste water treatment plant through a pipe into a ditch that starts above their property, traverses their property and appellees' property, and eventually runs into Deer Creek. The ditch, which lies within fifty feet of appellees' house, has been classified as an intermittent stream by the United States Geological Survey and is dry ninety percent of the year.

Appellees alleged that the flow of effluent through the ditch would constitute a nuisance and a trespass upon their private property. They contended that the effluent would not completely traverse their property due to the lack of a natural water flow but instead would settle in their ditch causing sewage constituents to accumulate on their land. Appellees further claimed that the effluent would erode and destroy the ditch. Finally, appellees asserted that they have no adequate remedy at law to abate the conditions that would be created by appellants, and that they would suffer irreparable harm should appellants be permitted to operate their waste water treatment plan in the manner appellants have proposed.

The trial court concluded that the ditch was a private ditch owned by appellees and that the effluent would constitute a trespass on appellees' property. The trial court granted a temporary injunction and later a permanent injunction preventing appellants from discharging the effluent from the waste water treatment plant into appellees' ditch.

In their first assignment of error, appellants assert that the trial court's finding that the ditch traversing appellees' property was a "private ditch" rather than an "intermittent stream" is against the manifest weight of the evidence. The Supreme Court of Ohio has held that "[j]udgments supported by some competent, credible evidence going to all the essential elements of the case will not be reversed by a reviewing court as being against the manifest weight of the evidence." C.E. Morris Co. v. Foley Constr. Co. (1978), 54 Ohio St.2d 279, 8 O.O.3d 261, 376 N.E.2d 578, syllabus. When conducting this review, an appellate court must not reweigh the evidence or substitute its judgment for that of the trial court when there exists competent, credible evidence supporting the trial court's findings of fact and conclusions of law. Seasons Coal Co. v. Cleveland (1984), 10 Ohio St.3d 77, 80, 10 OBR 408, 410-411, 461 N.E.2d 1273, 1276-1277. "The underlying rationale of giving deference to the findings of the trial court rests with the knowledge that the trial judge is best able to view the witnesses and observe their demeanor, gestures and voice inflections, and use these observations in weighing the credibility of the proffered testimony." Id.

This court must therefore determine whether there exists competent, credible evidence to support the trial court's finding that the channel across appellees' property is a private ditch. The distinction between an intermittent stream, which is presumably public, and a private ditch is significant because it determines appellants' right to use the channel. ³ In Caldwell v. Goldberg (1975), 43 Ohio St.2d 48, 72 O.O.2d 28, 330 N.E.2d 694, the Supreme Court of Ohio held that "[w]here the owner of a private sewage disposal plant threatens, under claim of right, to cast effluent into a ditch which flows through private property and is not a public watercourse, such action would be a continuing trespass which may be enjoined." Id. at paragraph two of the syllabus. The Supreme Court identified the determinative issue as whether the drainage ditch traversing the parties' land was a public or private ditch. Id., 43 Ohio St.2d at 49, 72 O.O.2d at 28-29, 330 N.E.2d at 695.

The difficulty in the present case lies in the fact that little evidence exists that might conclusively show that the ditch is either public or private. All parties seem to agree that the ditch is part of the drainage pattern for the area's surface water. Furthermore, several witnesses identified the ditch as a watercourse ⁴ that carries rain, snow, or other runoff from higher elevations to Deer Creek. However, despite the fact that evidence tended to show that water is prevalent in the ditch where it crosses other properties, the evidence was clear that water rarely runs through the ditch on appellees' property.

There was little guidance available to the trial court in determining whether the ditch on appellees' land is public or private. Caldwell v. Goldberg, supra, provides that "[d]iffuse and intermittent flow of water over lowlands does not qualify as a public watercourse without more evidence of a stream bed or watercourse of some sort." Id., 43 Ohio St.2d at 50, 72 O.O.2d at 29, 330 N.E.2d at 696. The Cuyahoga County Court of Common Pleas, one of the few courts to cite Caldwell, stated as follows: "As in the Caldwell case, the ditch in this case carries intermittent surface water, and from the court's observation can under no stretch of the imagination qualify as a stream bed or watercourse." Grigger v. N. Royalton (1977), 59 Ohio Misc. 103, 110, 11 O.O.3d 21, 25, 394 N.E.2d 353, 358. Although appellants argue that there was in fact evidence of a stream bed or watercourse, the credibility of that testimony is an issue to be determined by the trial court. Seasons Coal Co. v. Cleveland, 10 Ohio St.3d at 80, 10 OBR at 410-411, 461 N.E.2d at 1276-1277.

The trial court referred to R.C. 6131.59, which provides that a ditch becomes a public watercourse when it has been improved pursuant to R.C. Chapter 6131. Although a property owner adjacent to appellees has improved his portion of the ditch, all parties agree that appellees' ditch has not been so improved. "A drainage ditch located on private property does not become a public watercourse by reason of R.C. 6131.59, unless it was established or improved pursuant to provisions of R.C. Chapter 6131." Caldwell v. Goldberg, 43 Ohio St.2d 48, 72 O.O.2d 28, 330 N.E.2d 694, paragraph one of the syllabus.

After considering all of the evidence, the trial court concluded as follows:

"3. Although the ditch in question may be 'waters of the United States' and therefore subject to the jurisdiction of the U.S. Army Corps of Engineers over the dredging or filling of said ditch, this does not change a private stream or ditch into a public stream or ditch.[ ⁵ "4. The evidence does not show that the ditch in question has been established or improved pursuant to the provisions of O.R.C. 6131. or dedicated by its owners for public use. Accordingly, the ditch on the Ritchhart property which is the subject of this action, is a 'private' ditch."

Competent, credible evidence exists to support the trial court's findings. Several photographs of the area and the ditch were submitted to the court, all showing dry expanses of grass, woods, or soil. Testimony indicated that water only flows in the ditch after it has rained at least two inches in a short period of time. ⁶ Additionally, witnesses testified that the ditch has never been improved nor has it been dedicated to public use. Affording the proper deference to the findings of the trial court judge, who observed the witnesses and their demeanor and was thus able to determine the credibility of the proffered testimony, we must conclude that the trial court's determination that the channel is a private ditch is not against the manifest weight of the evidence. Accordingly, appellants' first assignment of error is overruled.

In their second assignment of error, appellants contend that the trial court erred by granting the injunction because appellants' riparian rights entitle them to discharge water into an intermittent stream. ⁷ Appellants argue that the trial court should have applied riparian water law rather than Caldwell v. Goldberg in its determination of this case.

The cases cited by appellants to support their argument that they possess riparian water rights are...