Alderman v. Murphy

486 So. 2d 1334
CourtDistrict Court of Appeal of Florida
DecidedMay 7, 1986
Docket85-526
StatusPublished
Cited by7 cases

This text of 486 So. 2d 1334 (Alderman v. Murphy) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Alderman v. Murphy, 486 So. 2d 1334 (Fla. Ct. App. 1986).

Opinion

486 So.2d 1334 (1986)

J.M. ALDERMAN and Belle Alderman, Appellants,
v.
John D. MURPHY, Donald M. Roberts and Sharon Roberts, His Wife, Ernest Poux, and Martin County, Etc., Appellees.

No. 85-526.

District Court of Appeal of Florida, Fourth District.

March 19, 1986.
Upon Motion for Rehearing and Clarification May 7, 1986.

Hubert R. Lindsey and Edna L. Caruso of Edna L. Caruso, P.A., West Palm Beach, for appellants.

Douglas E. Thompson, of Farish, Farish & Romani, West Palm Beach, for appellees, John D. Murphy, Donald M. Roberts, Sharon Roberts and Ernest Poux.

GLICKSTEIN, Judge.

Defendants appeal from an adverse final judgment. We affirm the final judgment as to the plaintiffs Murphy and Roberts, and affirm the finding of liability of the defendants to the plaintiff Poux, but reverse the award of damages to him and remand for new trial, as to him only, upon the issue of damages.

*1335 Each of the plaintiffs owned land in the vicinity of land held by the Aldermans. In their complaint, they alleged that by stopping and plugging the natural flow of water in a drainage ditch from their respective properties to the Aldermans' property, and by building dikes along the south and east boundaries of the Aldermans' property, the defendants had caused surface water to stand on the plaintiffs' respective properties, and, especially during heavy rainfall, their lands were flooded. They sought injunctive relief and damages for, among other things, livestock and pets lost, and damage to homes and contents. They further alleged nuisance and trespass resulting from the Aldermans' conduct. Poux' claim stated that the damage to him included loss of approximately 700 chickens, damage or death to three goats and ten hogs, and damage to miscellaneous personal property. The defendants denied they had plugged any drainage ditch and denied any ditch could be a natural watercourse, stating that any ditch on the defendants' property referred to by plaintiffs had been built by the defendants and others for the purpose of draining the defendants' lands. They admitted constructing, in 1964-1965, a complete drainage system on their own lands, including dikes, ditches, and a flood water storage area, together with a pumping system towards the west in concert with others, to make their land suitable for a productive citrus grove, since developed. They stated their drainage system construction had no effect on existing drainage. They denied interfering in any way with the lands of any of the plaintiffs, alleging these were low-lying and subject to flooding in times of high water. They said any harm suffered by the plaintiffs came from natural causes and the plaintiffs' failure to protect themselves, or from conduct of persons other than the defendants.

The defendants further said there was no drainage plan or incursion, or easement or the like, for any of the properties of the plaintiffs when an abstract of title was examined at the time the defendants bought their property. They also alleged that inadequate drainage afforded for Fox Brown Road by Martin County caused the flooding on the plaintiffs' property; and that Martin County did damage to defendants' property by removing some of their dike without authority, during the time of heavy rainfall. Finally, they said there was also an old roadbed of unknown origin, to the south of the lands of the plaintiffs, that impounds waters that would otherwise flow naturally to the south.

Subsequently the defendants filed a third-party complaint against Martin County; Martin County filed an answer and a counterclaim; and the defendants answered the counterclaim and crossclaimed against Martin County, which Martin County answered. The case was tried to a jury over a two week span, at the end of which verdicts were returned in favor of the plaintiffs and Martin County and against the defendants, upon which the trial court entered final judgments. This appeal followed.

As we have said, in his complaint, plaintiff Poux alleged loss of 700 chickens, three goats and ten pigs as well as miscellaneous damage to personal property; however, he testified at trial that because of the flooding resulting from Hurricane David he lost practically all his chickens — 7,000 — seventy pigs, and he did not know how many goats. He had bought ten, but his wife and children also had goats. As we shall discuss this poses no problem here because of the defendants' failure to object.

However, when Poux started to testify that he lost the whole property — forty acres plus the house — because as a result of the flood he could not pay the mortgage, the defense objected on the ground these were remote and special damages that had to be pleaded and were not. Plaintiff's counsel said this loss had been stated by Poux in response to defendant's interrogatories propounded about a year earlier. (The court also asked as to the chickens, in *1336 essence, how the 700 became 7,000. The plaintiff's counsel's answer was that he thought it was a typographical error of Poux' previous lawyer, who prepared the complaint.)

Appellants/defendants' objection was overruled. Poux resumed his testimony. He said that the livestock was the sole source of his livelihood, and loss of the livestock made it impossible to maintain the mortgage payments, and the farm was lost. He said he had paid about $50,000 on the mortgage and down payment. Poux also testified he had never told the lawyer who prepared the complaint, the number of livestock lost that are mentioned in the complaint, as he never met the lawyer. On cross-examination Poux said the down-payment was $12,000 and he made mortgage payments on a note for about $70,000 at a monthly rate of about $245 or $247, for more than a year.

Exhibits placed in evidence by the defendants include 1940 and 1952 aerial photographs of the properties involved in this suit. The defendants' property is much larger than the properties of the plaintiffs and lies generally to the north and the west of those properties. To the east of all the subject properties is Fox Brown Road, a north-south road belonging to the county.

The 1940 aerial photo shows the lands to be generally low-lying and flat. There is a large pond on what are more recently the Murphy, Roberts and Poux properties. The large pond has an outlet toward the south. None of the Alderman property is south of the plaintiffs' parcels. The 1952 aerial photo shows more generalized but apparently shallower water extending on both sides of the section's southern boundary. The section boundary is also the southern boundary of much of Poux' land. Murphy's and Roberts' lands lie to the north and east of Poux' land.

According to the record, the elevation at a benchmark on Fox Brown Road, east of the properties, is between thirty-nine and forty feet. The Aldermans' land at its southwest corner has an elevation of about thirty-four feet. At a point about midway between those just mentioned, which point is along the section boundary where Poux' land abuts the Aldermans' land, the county removed a plug after Hurricane David flooded plaintiffs' properties; and witnesses who were present said water at once began flowing west from Poux' property into a ditch at the south end of the Aldermans' property. There was testimony indicating water could not flow eastward from the plaintiffs' properties because the land to the east was higher in elevation.

John Joseph Toniole was the owner of the Poux property prior to Poux' purchase of it.

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Bluebook (online)
486 So. 2d 1334, Counsel Stack Legal Research, https://law.counselstack.com/opinion/alderman-v-murphy-fladistctapp-1986.