Sargent v. Lambert Const. Co.

• Decision Date: 19 December 1979
• Citation: 378 So.2d 1153
• Parties: Thomas A. SARGENT v. LAMBERT CONSTRUCTION COMPANY. Civ. 1984.
• Court: Alabama Court of Civil Appeals

Page 1153

378 So.2d 1153

Thomas A. SARGENT v. LAMBERT CONSTRUCTION COMPANY.

Civ. 1984.

Court of Civil Appeals of Alabama.

Dec. 19, 1979.

Dan E. Schmaeling of Webb, Crumpton & McGregor, Montgomery, for appellant.

Randall C. Morgan of Hill, Hill, Carter, Franco, Cole & Black, Montgomery, for appellee.

WRIGHT, Presiding Judge.

This is an action by a lower property owner against an upper property owner for interfering with and channeling the natural drainage of water. The court found in favor of defendant. The issue on appeal is whether the trial court misapplied the law to the facts. We find that the trial court did so err and we reverse.

The trial court made the following finding of fact:

Both the plaintiff and defendant's lots are located within the corporate limits of the City of Montgomery. The plaintiff is the lower land owner and the defendant owns property above the plaintiff's lot; however, the properties are not contiguous. A portion of the plat which reflects the relative location of the lots is appended to this Order. A ten (10) foot private drainage easement extends across the rear of the defendant's lot. The lot adjacent and to the north of the defendant is owned by Mr. Johnson.

The plaintiff has resided on Lot 6, Block 22, of Johnstown Plat No. 1 since 1962. The plat was approved June 29, 1961. The defendant resides on Lot 13, Block 22, of Johnstown Plat No. 7, which was approved March 27, 1975. At the time the plaintiff built his residence, Johnstown Plat No. 7 had not been developed.

Until the defendant constructed its residence, all surface water spread out and diffused laterally on the property behind the plaintiff's (Lots 12, 13 and 14 of Johnstown Plat No. 7).

The defendant constructed its residence in 1978. The plans and specifications, including drainage specifications, were approved by the City of Montgomery. Class "C" drainage, which provides for drainage to the rear of the defendant's lot, was approved as it fit the natural slope of the defendant's lot. The defendant constructed two (2) swales, one of which runs across the middle of his lot to the rear; the other runs down the north property line. Both swales empty into the ten (10) foot drainage easement. There is no drainage ditch in the easement on the defendant's or on Johnson's (Lot 14) property.

The plaintiff testified that he never had any flooding problem until after the defendant constructed its residence, and that it did not notice the unnatural flow until the retaining wall collapsed. Moreover, the plaintiff testified that there was no flow down the drainage easement until after the construction by the defendant. The plaintiff has now corrected the flooding problem to some extent by erecting a leaf barricade along a fence across the rear of his lot.

Mr. Frank Garrett, a registered Civil Engineer, inspected the defendant's lot and viewed Mr. Johnson's lot. The swales conduct the water onto the drainage easement with great force; however, the Johnson's property at the easement is at a higher elevation than the defendant's property and the water will not flow across the easement. Because of this, the natural flow is onto the plaintiff's property. Mr. Garrett also testified that three or four other lots drain onto the defendant's lot. In conclusion, Mr. Garrett testified that the drainage easement is not suitable for drainage, and that Class "C" drainage is acceptable (R. 35, 36, 37.)

The court thereafter entered "Conclusions of Law." We quote as pertinent:

This claim is grounded on negligence and trespass.

There is no evidence that the defendant was negligent in the construction of the swales or evidence of any other negligent conduct. . . .

The remaining issue is whether the defendant is liable for trespass for causing the water to flow onto the plaintiff's lot. . . .

The court continued thereafter to quote from the decision in the case of Rushing v. Hooper-McDonald, Inc., 293 Ala. 56, 59, 300 So.2d 94 (1974) and from the Restatement of Torts, Second, § 158, Liability for Intentional Intrusions on Land. The law expressed by these quotations is that of trespass. Plaintiff in his complaint uses the word "negligent" in relation to the construction by defendant of drainage ditches. He also uses the word "trespass" in relation to the diverting and casting of water by defendant upon his property. However, we find it evident from the complaint as a whole, the testimony and the written brief and argument submitted by plaintiff to the trial court that the theory for recovery was the common-law right of a lower property owner not to be injured by the interference of an upper property owner with the natural drainage of water onto the lower property. That common-law right is not dependent upon the law of...