Steinbeck v. Philip Stenger Sons, Inc.

• Decision Date: 20 January 1975
• Citation: 345 N.E.2d 633,46 Ohio App.2d 22
• Parties: , 75 O.O.2d 25 STEINBECK et al., Appellees, v. PHILIP STENGER SONS, INC., Appellant. *
• Court: Ohio Court of Appeals

Page 22

46 Ohio App.2d 22

345 N.E.2d 633, 75 O.O.2d 25

STEINBECK et al., Appellees, v. PHILIP STENGER SONS, INC., Appellant. ^*

Court of Appeals of Ohio, First District, Hamilton County.

Jan. 20, 1975.

Syllabus by the Court

Where the owner of a dominant estate located in an urban area alters several natural watercourses on his property so that surface water flowing onto a subservient estate in one area is increased in volume and intensity to the injury of the latter, the owner of the lower land is entitled to damages and equitable relief.

Weber, Hensley & Nurre and W. David Bertsche, Jr., Cincinnati, for appellees.

Carroll, Bunke & Henkel and Peter M. Rebold, Cincinnati, for appellant.

PER CURIAM.

This cause came on to be heard upon the appeal; the transcript of the docket; the journal entries and original papers from the Court of Common Pleas of Hamilton County; the transcript of the proceedings; the assignments of error; and the briefs and arguments of counsel.

In 1957, plaintiffs, the appellees herein, became the owners of a low-lying parcel of realty interdicted by two watercourses. Their land is a rectangular residential lot, the long axis of which runs 350 feet north to a mutual boundary with defendant's property. This latter realty consists generally of high ground rising to a plateau some 450 feet to the north. Prior to its purchase by defendant, the appellant, in 1972, it had been devoted exclusively to farming uses. The drainage of such high gound was then wholly natural, accomplished by surface waters diffusing through at least four watershed areas into four watercourses. Two of these ran from the plateau to the north and northwest. The remaining two drained from the plateau to the south, one entering plaintiffs' land from the northwest, the other passing through a third party's realty to enter plaintiffs' land from the northeast. These latter two watercourses, the diversion of which is the focus of this controversy, will hereinafter be referred to as the eastern and western draws.

In 1958, plaintiffs moved into their newly-constructed house, and by the end of the following year had improved the drainage of their property so as to accommodate and remove excees surface waters from both the eastern and western draws. Since the eastern draw was the predominant of the two, it was converted from an open watercourse to an enclosed 4 ft square box culvert. This culvert followed, precisely, the path of the original uncovered watercourse through its confluence with the minor western draw, discharging ultimately near the soughwest corner of plaintiffs' property. The culvert was fitted with various inlets to receive the surface water, and in light of its capacity, sound construction and accurate placement served not only to eliminate runoff problems, but also permitted plaintiffs to use the northern portion of their lot without limitation.

In 1972, however, in consequence of defendant's purchase of the tract to the north, including 5.9 acres of high ground containing part of the pleateau and the greater length of both the eastern and western draws, three altered sets of circumstances arose. Defendant, a housing developer, intended the 5.9 acres as part of a larter contiguous subdivision of roughly 24 acres. In order to facilitate construction, he altered the topography of the high ground, apparently obliterating the north-south ridge which had separated the eastern and western draws and steepening the grade leading to plaintiffs' property. Preliminary discussions between plaintiffs and defendant as to the purchase and sale of an easement, whereby the high ground could be drained into plaintiffs' box culvert through the eastern draw, dissolved in mutual unpleasantness and were not resumed. Securing the approval of local governmental authorities, defendant ultimately constructed a storm sewer system for what was alleged to be 5.5 acres, wherein houses to be built at the head of the eastern draw were drained along a new street atop the plateau into pipes placed in the western draw. This combined and diverted runoff was then conducted underground to a point just short of the mutual boundary. The outlet at the discharge point is a pipe 18 inches in diameter, set in a large concrete headwall geographically sited on ground which, prior to topographical alteration, had been the western draw.

The gravamen of plaintiffs' Complaint concerned the effect upon their property of the diverted, increased and accelerated runoff disgorged by defendant's pipe. Throughout 1973, as construction continued and eleven of the sixteen houses planned for the original 5.9 acre tract were completed, the pipe shot water into the lower owner's backyard, inundating his garden, layering the lawn with mud, debris, rocks, and pollutants, and destroying flowers, vegetables and grass. In some instances, runoff by-passed the pipe with commensurate deposits of assorted effluvia passing directly onto the lower owner's land. In consequence of the cumulative and continuing effect of defendant's use of the higher ground, this action was brought for damages and injunctive relief. After a trial by jury, the lower owner was awarded $7,000 compensatory and $10,000 punitive damages. The court, sitting in equity, then ordered the purchase and sale of an easement to allow for the construction of an undergound link between defendant's pipe and plaintiffs' culvert, with $1,800 awarded plaintiffs to accomplish the same.

I.

Defendant presents six assignments of error, the first asserting that the trial court erred in overruling its motions for a directed verdict made both at the close of plaintiffs' case and renewed at the close of all evidence. Defendant relies heavily upon the case of Munn v. Horvitz Co. (1964), 175 Ohio St. 521, 196 N.E.2d 764, urging us in substance to accept the following syllogism:

The law of Munn ¹ frees the upper landowner from liability to the lower owner for injury to the latter from an increase in volume and acceleration of the flow of surface waters caused by artificial conditions (such as result from the construction of a subdivision of guttered homes, conversion from grassed areas to blacktop or concrete surfaces, etc.), so long as the surface waters are colleted within and from its own property from watersheds naturally exhausted onto appellees' property, and the discharge point for the increased and accelerated flow is a natural watercourse within, originating on or passing through, the upper owner's property and;

The evidence before the trial court placed appellant and appellees in precisely the same situation, in all material respects, as in the Munn case.

Therefore, appellant concludes, since reasonable minds could come to but one conclusion with respect to the foregoing premises, appellant was entitled to a directed verdict, which the court erred in not granting.

Because of the complexity of the questions underlying this argument, it may be useful to briefly sketch the fundamental theories of surface water law arguably applicable to the instant case. First is the so-called civil-law rule, traditionally applied to rural areas, although also found to some degree, as in Munn, in municipal corporation cases. In its strict application, the civil-law rule requires the upper owner to leave his land in a purely natural condition and the lower owner to accept, without redress, whatever surface waters flow therefrom. A modification of this rule allows artificial drainage by the upper owner to enhance the practice of agricultural pursuits, subject to the Munn qualifications (paragraph one of the syllabus), and subject to certain rights in the lower owner who may suffer therefrom. Martin v. Jett (1838),12 La. 501; Butler v. Peck (1865), 16 Ohio St. 334; 55 Ohio Jurisprudence 2d 233, Waters and Watercourses, Section 55. As to urban lands, however, it has been widely stated that 'surface water is a common enemy in a city,' and the Supreme Court of Ohio has held that 'the owner of private lots can raise the same to grade if he so desires, and can thus keep out all surface water * * *.' Springfield v. Spence (1883), 39 Ohio St. 665, 671. This common-law, or 'common-enemy,' rule would appear to be the basis for relief only in urban areas (Johnson v. Goodview Homes-1, Inc. (1960), Ohio Com.Pl., 167 N.E.2d 132, 82 Ohio Law Abst. 526) with its civil-law counterpart prevailing in unincorporated rural areas, Mason v. Commissioners (1909), 80 Ohio St. 151, 88 N.E. 401. Yet, any thought of a strict dichotomy of authority along these lines must give way to reality, which shows the distinction blurred by a number of exceptions engrafted onto the rule.

One of the most notable of these is the 'reasonable use' doctrine, adopted in this appellate district in Strohm v. Molter (1939), 30 Ohio Law Abst. 330, where it was applied to urban areas, and again enunciated in Ratcliffe v. Indian Hill Acres (1952), 93 Ohio App. 231, 113 N.E.2d 30, where it was applied to a combined surface waters-riparian rights question in an area composed predominatly of large rural estates.

Munn v. Horvitz, supra, involved in part the acquisition by a municipal corporation of a pre-emptive right to divert surface water from one watershed to another, and in part the question answered by paragraph one of the syllabus. (See Note 1.) To the extent that the case requires the rule of reasonable use regardless of locality (Munn v. Horvitz, 175 Ohio St. at 528, 196 N.E.2d 764), and in light of its apparent application to municipalities of the civil-law rule disigned for use in rural areas, ² we are left with little certainty of any continuing utility in the civil-law common-law distinction. ³

Be that as it may, it is clear to us that defendant misapprehends what it conceives to be the controlling efect of Munn on the case at issue. Defendant assumes that Munn stands as authority for its right to collect, increase in volume and acceleration, and discharge...