Weldin Farms, Inc. v. Glassman

Decision Date07 April 1980
Citation414 A.2d 500
PartiesWELDIN FARMS, INC., a Delaware Corporation, Defendant Below, Appellant, v. Carl I. GLASSMAN and Wilma K. Glassman, Plaintiffs Below, Appellees.
CourtSupreme Court of Delaware

Upon appeal from the Court of Chancery. Judgment Modified and Case remanded.

Edward M. McNally and Howard L. Williams, of Morris, James, Hitchens & Williams, Wilmington, for defendant-appellant.

Louis J. Finger, of Richards, Layton & Finger, Wilmington, for plaintiffs-appellees.

Catherine S. Mulholland, Wilmington, for amicus curiae New Castle County.

Before HERRMANN, C. J., and McNEILLY and QUILLEN, JJ.

QUILLEN, Justice:

The appellant, Weldin Farms, Inc., a developer of residential property, has appealed a judgment of the Court of Chancery enjoining it from draining the surface waters from its development, situated upstream from the appellees' property, into a stream known as Turkey Run which runs alongside and through their property, in any way which would increase the volume of its natural flow above what it had been before the development of the upstream property. With the laying of pavement, the amount of surface water which runs into Turkey Run off the ground, rather than being absorbed into it, has greatly increased.

The problem situation giving rise to this litigation first arose when Turkey Run, which had for the most part been dry when the appellees, the Glassmans, moved into the downstream property in 1959, began, as a result of gradual development of properties upstream, to increase in volume and to overflow its banks during storms. This first happened in 1967, and then on subsequent occasions, with resultant damage to the Glassman residence. The Glassmans have had their garden, and the tan bark used for walkways and plant coverings washed away, their basement flooded and waters entering the house through basement windows and a back door, and their dog kennels unhinged from their moorings and overturned.

When Weldin Farms installed its drainage system in 1974, the Glassmans protested its plan to drain surface water from 17 acres, or two-thirds of its land by directing it down the southerly side of Simon Road, upon which their property abuts, to empty into Turkey Run through a 42-inch pipe placed at their property. In the ensuing litigation both sides presented expert testimony as to the effects of Weldin Farms' drainage system on Turkey Run and the Glassman property. The premises upon which the testimony was based were that there would be a storm of the intensity which only occurs every fifty years, that the Turkey Run drainage basin would be fully developed, and that the "peak flow" from Weldin Farms would reach the Glassmans at the same time that the peak flow from other upstream areas would reach the same point. The Vice Chancellor concluded that, although the degree of flooding was uncertain, 1 there would definitely be a slight increase in the flow of Turkey Run during a storm due to the channeling from Weldin Farms. The consequent lateral dispersion of waters overflowing the banks of Turkey Run would cause greater flooding of the Glassman property than would otherwise occur.

The Vice Chancellor ruled that the law of this State concerning the respective rights of upstream and downstream landowners with regard to the drainage of surface waters follows the "civil law" or "natural flow" doctrine to the effect that the upper owner may not, by any alteration of the natural drainage pattern, increase the level, volume or velocity of the flow in a natural watercourse to the increased burden of the lower owner. Vantex Land and Development Co. v. Schnepf, Ariz.Supr., 82 Ariz. 54, 308 P.2d 254 (1957); Templeton v. Huss, Ill.Supr., 57 Ill.2d 134, 311 N.E.2d 141 (1974); Annot., 93 A.L.R.3d 1193, 1207-1211 (1979); 3 Tiffany, Real Property § 734 (3rd ed. 1939); 78 Am.Jur.2d Waters § 121 (1975); 93 C.J.S. Waters § 114 (1956). Appellants urge that that is not the proper interpretation of Delaware law, or alternatively, that this Court should modify that law by adopting the doctrine of reasonable user which has recently been gaining authority in numerous jurisdictions. Annot., 93 A.L.R.3d 1193, 1216.

It should be noted that three theories of the rights of landowners to drain their surface waters have evolved in this country. There is no clear English common law on the subject. Kinyon & McClure, Interferences with Surface Waters, 24 Minn.L.Rev. 891, 899-902 (1940). The right of an upper landowner to drain without interference the natural flow of water from his land to the land below has not been questioned. The further question of what, if anything, an upper landowner could do artificially to increase the flow of his waters downstream was answered by one of three options: (1) the "common-enemy" rule, which held that an upper landowner had the right to dispose as he pleased with surface water on his property and that the burden was on the lower landowner to protect himself from adverse consequences of any excess flow (Annot., 93 A.L.R.3d 1193, 1199-1203; 78 Am.Jur.2d, Waters § 120); (2) the "natural flow" rule mentioned above; or (3) the "reasonable user" rule, urged by the appellants, which, eschewing the rigid formulations of the two earlier rules, seeks to inquire into the facts of each case to determine the reasonableness of the effects of the action on the interests of all parties affected (Annot., 93 A.L.R.3d 1216-1221). The third approach has been said to represent a shift in the manner of viewing such problems from a property analysis to a tort analysis. Kinyon & McClure, supra, 24 Minn.L.Rev. at 936-939. Matters considered include the amount of harm caused, the foreseeability of the harm which results, the utility of the owner's use of his land as weighed against the gravity of the harm which results from altering the flow of surface waters (see Micucci v. White Mountain Trust Co., N.H.Supr., 114 N.H. 436, 321 A.2d 573, 575 (1974); Armstrong v. Francis Corp., N.J.Supr., 20 N.J. 320, 120 A.2d 4, 10 (1956); Tucker v. Badoian, Mass.Supr., 384 N.E.2d 1195, 1201-1202 (1978) (concurring opinion of Justice Kaplan); 5 Clark, Waters and Water Rights §§ 450.6, 453.3 (1972)) and, following the Restatement of Torts (Second) §§ 822-833 (1979), whether the upper owner's conduct is intentional and unreasonable, or reckless or negligent. Thus, the reasonable user rule, unlike the earlier two rules, allows the Court to balance the interests of the parties involved and also to consider as a relevant factor the social value of land development, a factor the strict natural flow doctrine ignores. Professors Kinyon and McClure point out in their article that even in jurisdictions that purport to follow the earlier rules the courts have found themselves constrained to let in competing considerations when faced with an owner's desire to make normal use of and improvements on his land or contrarily to unduly aggravate the hardship to his neighbor. Some of the exceptions and qualifications to the older rules in practical effect amount to a limited adoption of the reasonable use standard. 2

It is necessary to examine precisely what the Court of Chancery determined. The Vice Chancellor, in a very thorough and scholarly opinion, concluded that this Court in Pierce Family, Inc. v. Magness Construction Company, Del.Supr., 235 A.2d 268 (1967) held "that the civil, or natural flow rule applies in this State and has rejected, at least to this point, the reasonable user rationale." Glassman v. Weldin Farms, Inc., Del.Ch., 359 A.2d 669, 676 (1976). He went on to say that "even if . . . a reasonable use . . . test is to be applied" and "even if it is proper here to balance the benefits and hardships that will stem from the issuance of an injunction, the balance tips in favor of the plaintiffs . . . ." Id., 359 A.2d at 680-681. The separate written judgment, however, enjoined the defendants "from, in any way, draining the surface waters of the Weldin Farms development into Turkey Run at or above the intersection of Simon Road and Turkey Run in any manner which would cause an increase in the natural flow of Turkey Run over that which existed when the Weldin Farm development was in its natural and undeveloped state." Thus, judgment was clearly entered in accordance with the natural flow rule.

We turn now to our specific case precedent. It has been generally accepted that there are only five relevant cases. Glassman v. Weldin Farms, Inc., supra, 359 A.2d at 673; Pierce Family, Inc. v. Magness Construction Company, supra, 235 A.2d at 270; 5 Clark, supra, § 456.2, pp. 542-544.

The first case, Chorman v. Queen Anne's R. Co., Del.Super., 54 A. 687 (1901), concerned a situation where there was no natural watercourse on either plaintiff's or defendant's property, but defendant had constructed a ditch to drain the surface waters from his land onto plaintiff's wheat field, destroying plaintiff's crop. Stating that it was dealing "only with the principles of law which govern the throwing of surface water from the land of one owner into and upon the land of a neighboring owner" (54 A. at 690), the Court concluded that the lower landowning plaintiff could recover if the jury found that the upper owner, by such ditching, had thrown surface waters on the lower owner's land, thereby destroying plaintiff's crop. Thus, the case is a very narrow one where the plaintiff would probably be permitted to recover even under the modified application of the common enemy rule permitting recovery in collection and discharge cases. 5 Clark, supra, § 451.2(A), pp. 491-492.

The Court of Chancery in Staats v. Hubbard, Del.Ch., 63 A.2d 856 (1949), in denying a motion to dismiss, drew upon the Chorman principle in a situation where the plaintiffs' next-door neighbors had raised the level of their land above the plaintiffs' with the result that their surface water was draining onto plaintiffs' property causing...

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