Wilmont Homes, Inc. v. Weiler
| Citation | 202 A.2d 576,42 Del.Ch. 8 |
| Parties | WILMONT HOMES, INC., Defendant Below, Appellant, v. Morris WEILER and Marilyn R. Weiler, his wife, Daniel Bergstrom and Esther V. Bergstrom, his wife, George L. Taylor and Grace P. Taylor, his wife, Robert B. Stewart, Jr., and Anne C. Stewart, his wife, and John Panchak and Dorothy Panchak, his wife, Plaintiffs Below, Appellees. |
| Decision Date | 06 July 1964 |
| Court | United States State Supreme Court of Delaware |
Appeal from the Court of Chancery in and for New Castle County.
Robert B. Walls, Jr., Wilmington, for appellant.
Vincent A. theisen, of Theisen & Lank, Wilmington, for appellees.
This is an appeal from a final judgment of the Vice Chancellor ordering the abatement of the nuisance of periodic flooding of the plaintiffs' land by surface waters, the abatement to be accomplished in accordance with a certain engineering plan.
The plaintiffs are five families, each of which purchased a house and lot in Colonial Woods, a housing development of defendant, Wilmont Homes, Inc. The separate purchases of the plaintiffs were made as the result of an inspection of a sample house and the lot on which it was erected. The Vice Chancellor found as a fact that the purchases were made on the assurance that the lots on which the houses were to be built would be usable for gardening and other outdoor activity, and specifically that the cellars of the houses would be dry. These findings we accept since they find support in the record.
Plaintiffs selected their lot locations from a plan exhibited by defendant. Plaintiffs' lots all face on Brandywine Boulevard and lie one against the other. Upon completion of their houses, but before completion of the grading of their lots, plaintiffs took possession of their properties and moved in.
Defendant thereafter completed the grading of the yards so that a ridge or mound of earth-covered debris traversed the rear of plaintiffs' lots along the rear property line. Also, the grade of Bandywine Boulevard in front of plaintiffs' properties was established a foot and a half higher than originally planned. The result has been that surface water from fourteen or eighteen houses and lots, higher in elevation than plaintiffs' properties, collects in plaintiffs' back yards and is prevented by the higher elevation of Brandywine Boulevard from draining off into the gutter of that street.
The surface water so collected forms a small pond in plaintiffs' back yards which freezes in winter and becomes stagnate in summer. From this pond seepage of water penetrates the cellar walls of plaintiffs' properties causing damage to the walls.
On several occasions defendant has tried to remedy the situation by re-grading the land, but to no avail. Finally, recognizing that it had a responsibility in the matter, defendant proposed to install an open grass drainage swale to pass off the surface water to a lower level. This plan was rejected by plaintiffs for the reason that it would deprive them of the use of approximately half of their back yards and would traverse their properties with an open drainage ditch contrary to what they had contracted to buy.
Negotiations continued with plaintiffs ultimately suggesting the installation in accordance with engineering plans of a different plan for the elimination of the surface water. This plan defendant rejected, because of the expense.
An impasse having been reached, this action was filed for the abatement of a nuisance, viz., the continued flowing and collecting of large amounts of surface water upon plaintiffs' land caused by the defendant's negligent grading of the adjacent land.
The action below ran through the course of a motion for summary judgment, a motion to dismiss, and a full trial on the merits and, finally, the Vice Chancellor's order directing the defendant to abate the nuisance in accordance with an engineering plan submitted by the plaintiffs. The judgment ordered defendant within thirty days to commence the work and authorized plaintiffs, in the event defendant did not perform, to contract with a designated contractor, at defendant's expense, to have the work done. Defendant appeals.
Basically, defendant admits liability for the cost of getting rid of the excessive surface water collected on plaintiffs' land, but argues that plaintiffs have no standing in a Court of Chancery for the reason that by doing the necessary work themselves, they can establish their damages and sue for them at law. The argument is based upon the fundamental proposition that equity has jurisdiction only when there is no adequate remedy at law.
This action, however, is for the abatement of a nuisance, a subject matter over which equity has always had jurisdiction. To be sure, the remedy is not granted for trifling reasons, but where the injury is real and continuing, equity considers the remedy of damages at law to be inadequate and will take jurisdiction to abate the nuisance. 4 Pomeroy's Equity Jurisprudence (5th Ed.), § 1350; 2 Daniel's Chancery Pleading & Practice (4th Ed.) 1637. We think plaintiffs have successfully shown that the nuisance they seek to abate is real and continuing, and of the type for which equity will give relief. Indeed, there is more than a suggestion in the record to show that only defendant can abate this nuisance since its abatement probably requires going on the land of others, which defendant may do by reason of a reserved easement for that purpose, but which plaintiffs may not.
We are of the opinion that the Vice Chancellor properly took jurisdiction over this controversy.
Defendant then argues that, assuming the Court of Chancery had jurisdiction over the cause, it improperly exercised it. The argument is based upon the contention that this action in reality is one seeking the specific performance of a building contract, and that because of the difficulties inherent in the enforcement of such a decree by attachment for contempt, equity will not grant relief. Defendant cites in support 5 Pomeroy's Equity Jurisprudence (5th Ed.), § 1402 and Annotation, 164 A.L.R. 802.
There are at least two answers to defendant's argument in this respect. In the first place the flow of water upon plaintiffs' land is caused by the grade of other land in the area over which plaintiffs have no control, but upon which defendant has the right to enter to make necessary corrections. It seems to us moreover that the plan approved by the Vice Chancellor is sufficiently precise and definite to permit an easy determination of ultimate compliance. Thus, the facts of this case fall within the exceptions to the general rule noted in the authorities cited by defendant.
In the second place, defendant, we think, is in error in regarding the action as one for the specific performance of a building...
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