Graybill v. Providence Township

593 A.2d 1314, 140 Pa. Commw. 505, 1991 Pa. Commw. LEXIS 357

• Court: Commonwealth Court of Pennsylvania
• Decided: June 24, 1991
• Docket: 353 C.D. 1990
• Status: Published

Opinions

CRAIG, President Judge.

In this appeal from the order of the Court of Common Pleas of Lancaster County, granting summary judgment in favor of the defendants, Providence Township, Kenneth Harold Findley and Carol Ann Findley, and Earl Bachman, Kelly F. Bachman, Edward Ivan Bachman and Cathy J. Bachman, and entering judgment against the plaintiff, Dwight Graybill, this court must reexamine our decision in Leggieri v. Township of Haverford, 98 Pa.Commonwealth Ct. 646, 511 A.2d 955 (1986).

Graybill filed a complaint against the defendants seeking compensatory damages and equitable relief for a flooding condition that developed on his property which he alleges was caused by the defendants’ conduct. The trial court granted summary judgment in favor of the defendants based upon the conclusion that the plaintiff’s cause of action was barred by the statute of limitations. On appeal, Graybill challenges that conclusion.

1. Factual history

The pleadings, depositions and interrogatories, reveal the following facts and history. The Findleys owned a tract of land located on Scheller Road in the township. On July 28, 1980, the Findleys obtained approval of the Lancaster County Planning Commission for subdivision of their land into Lots Nos. 30A, 31, 32, 33, 34, 35, and 36, as shown on the Tax Map, and built three houses on three of the lots by 1983. Graybill owns property located on Scheller Road at the bottom of the hill below the Findleys’ subdivided lots. The Bachmans purchased Lot No. 36 on March 4, 1983 from the Findleys, subdivided it into two lots and built two houses on those lots in 1987. Paragraph 10 of Complaint and Bachmans’ Answer and New Matter; Bachmans’ Answer to Graybill’s Interrogatories Nos. 1-2, 4.

On December 7,1987, Graybill filed an action against the defendants seeking damages that allegedly resulted from flooding on his property caused by the subdivision and development of the Findleys’ lots. However, Graybill averred that he was seeking damages resulting from the continuing inundation of his property only “between November of 1986 and August of 1987.” Paragraph 24 of Complaint. Graybill also requested a permanent injunction to prevent the defendants from causing further damage to his property. (Counts 2, 4, 6, 8, 10, 12, 14 and 16 of Complaint.)

Graybill alleged that the Findleys were negligent (1) in failing to provide effective drainage of surface water when subdividing their land (Count 1); (2) in failing to obtain his written approval for disposal of stormwater as required by section 608.01.3 of the Lancaster County Subdivision and Land Development Ordinance (Count 3) ¹; (3) in removing a fence row from Lot Nos. 1 and 3 in October or November, 1986, which allegedly increased flooding of his property (Count 5); and (4) in violating Section 680.13 of the Storm Water Management Act, Act of October 4, 1978, P.L. 864, 32 P.S. § 680.13 (Count 7).²

Graybill alleged that the township was negligent as follows: (1) authorizing the installation of a storm water drainage pipe which conveyed the drainage of water from the new houses to the existing pipe, allegedly causing increase of water flow onto his property (Count 9); (2) failing to take remedial action to correct the storm water drainage system (Count 11); and (3) failing properly to inspect and monitor the development and grading of the subdivided lots pursuant to the township’s Storm Water Management Ordinance (Count 13). Graybill further alleged that the Bachmans were negligent in changing the quantity of surface water flowing onto his property (Count 15).

In their new matter, the defendants asserted the affirmative defense of the statute of limitations. The Findleys additionally asserted laches as to Graybill’s request for equitable relief. After the close of pleadings and completion of discovery, the defendants filed motions for summary judgment, one basis of which was that the two-year statute of limitations barred the action.³ The trial court agreed and granted the motions in favor of the defendants on all sixteen counts of Graybill’s complaint.

The trial court perceived Graybill’s complaint as alleging damage from inundation to his property as a result of the development of the neighboring lots in 1983, and concluded that in accordance with this court’s decision in Leggieri, the statute of limitations began to run when the first trespass occurred or when it reasonably should have been discovered. After reviewing the record and the Leggieri decision, this court concludes we should overrule our decision in Leggieri. Accordingly, the trial court’s decision must be reversed.

2. Permanent injury or continuing trespass

Leggieri relied on Sustrik v. Jones & Laughlin Steel Corp., 413 Pa. 324, 197 A.2d 44 (1964), as a framework for analyzing when a particular injury to land should be characterized as a permanent injury or a continuing trespass. The allegations in this case are of occasional flooding caused by increased runoff and drainage onto the plaintiff’s land resulting from the construction of houses on nearby higher land. A closer analysis of Sustrik does not lead to the conclusion that Graybill’s allegations demonstrate a permanent change, as compared to a continuing trespass, as a matter of law so as to justify a grant of summary judgment.

In Sustrik the plaintiffs sought to recover damages from the adjacent landowner for, among other things, an unlawful trespass from an underground sewer line draining water from the defendant’s mine across the plaintiffs’ property to a nearby creek. The court held that the claim relating to the sewer line was barred by the statute of limitations, noting that the sewer had been installed more than forty years before the commencement of the suit. Referring to commentary from the Restatement of Torts § 162 (1939) that is similar to commentary now found in the Restatement (Second) of Torts (1965), the court rejected the plaintiffs’ claim that the sewer line across their property constituted a continuing trespass.

The facts of Sustrik involved injury similar to the examples given in both Restatements for a trespass that causes a permanent change: an entry onto the land of another and an affirmative act, such as an excavation, producing a permanent change to that land itself. The allegations of the present case concern acts of construction by the defendant Findleys upon their own land. Those acts did not directly and immediately cause any injury to Graybill’s land; rather, those acts, coupled with the effects of rainfall, allegedly resulted in consequential damage to Graybill. That distinction prevents the straightforward application of the Section 162 commentary to cases such as this.

The material facts of Leggieri are indistinguishable from those of the present case. In our view, Leggieri represents a misapplication of Sustrik and an incorrect analysis of cases involving overflow of water.

In the annotation, When Statute of Limitation Commences to Run Against Damage from Overflow of Land Caused by Artificial Construction or Obstruction, 5 A.L.R.2d 302 (1949), the annotator noted that courts have frequently stated that the subject under annotation is one “beset with extreme difficulties, on which the authorities are in greatest conflict and exhibit a good deal of confusion.” Id. at 309-10 (footnotes omitted). Courts have uniformly based their holdings, concerning when the statute began to run, on the distinction between permanent change (sometimes called “original injury” or damage resulting from structures “necessarily injurious”) versus continuing trespass (also referred to as “temporary”, “transient” or “recurring” injury, see id. at 310). However, the cases reveal that determination of that question usually involves the close analysis of many factors.

Among the factors that courts have considered for this purpose are the closely related questions of the ascertainability or predictability of the injury involved (i.e., whether it is possible for the plaintiff to calculate all of his future damages in one action), and the question of the regularity of the incidents of overflow (i.e., whether the incidents happen frequently and predictably or only intermittently).

In Naylor v. Eagle, 227 Ark. 1012, 303 S.W.2d 239 (1957), plaintiffs alleged continuing injury to cropland three miles upstream from the point where the defendant had obstructed the flow of a watercourse. The Supreme Court of Arkansas held that, if the nature of the structure causing the overflow is such that damage to the plaintiff must necessarily result, and the nature and extent of this damage may be reasonably ascertained and estimated at the time of its construction, then there can be but a single recovery, and the statute of limitations against such cause of action is set in motion on the completion of the obstruction. However, if it is known merely that damage is probable or that, even though some damage is certain, the nature and extent of that damage cannot reasonably be known and fairly estimated, but is only speculative and conjectural, then the statute of limitation does not begin to run until the injury occurs, and there may be as many successive recoveries as there are injuries.

In Clawson v. Garrison, 3 Kan.App.2d 188, 592 P.2d 117 (1979), a landowner had leveled and irrigated cropland that naturally drained onto neighboring land, increasing the runoff from that land onto the neighbor’s. The landowner then created an obstruction in the form of an elevated roadway with culverts at the point where the water discharged onto the adjacent property, increasing the amount and the velocity of the discharged water. The court held that damage to the neighboring property was a temporary injury, because the flooding was an infrequent and virtually unpredictable occurrence, and the amount of both present and future damages could not reasonably be determined in a single action. The statute of limitations, the court determined, started to run at the time of each successive flow.

By considering the ascertainability of the plaintiff’s damages, or the intermittent nature of the injury, we keep the focus of our analysis on the factor that the Restatement commentary, quoted in Sustrik, regards as crucial, namely, the permanence of the change to the physical condition of the plaintiffs land, rather than on the permanence of the defendant’s structure that allegedly causes the injury.

In Archer v. J.S. Compton, Inc., 238 Iowa 1182, 30 N.W.2d 92 (1947), a plaintiff claimed damages for intermittent flooding of his land allegedly due to the defendant’s construction of a dike along its side of a creek running between the properties. The Supreme Court of Iowa held that

[T]he term ‘permanent,’ as here used, ‘has reference not alone to the character of the structure or thing which produces the alleged injury, but also to the character of the injury produced by it. In other words, the structure or thing producing the injury may be as permanent and enduring as the hand of man can make it; yet if the resulting injury be temporary or intermittent, depending on future conditions which may or may not arise, the damages are continuing, and successive actions will lie for successive injuries.’

Id. at 1190-91, 30 N.W.2d at 96 (quoting Harvey v. Mason City & Ft. Dodge Railway Co., 129 Iowa 465, 474, 105 N.W. 958, 961 (1906)).

In the present case, Graybill has not alleged, contrary to the assertion in Findleys’ brief, that he suffers flooding after every rain. Rather, as his response to interrogatories from the Findleys indicates, he alleges fewer than ten incidents of flooding over a period of almost four years, each at a time when he believes that the amount of rainfall was over one inch. (Brief for Appellee Providence Township, Exhibit A.) Graybill has not alleged that the defendants’ actions resulted in permanently submerging his land, or even that they caused such regular flooding as to have the same effect as submergence, causing him to abandon his house and to seek damages for its full value.

The damages that Graybill has enumerated include the replacement of appliances such as furnace, hot water heater and washer and dryer. In a single action to recover all damages, past, present and future, it is impossible to calculate how many such replacements should be alleged. Under these facts, it is impossible to know exactly how many, incidents of flooding would occur, and the severity of them. The effect of the holding in Leggieri is to compel a plaintiff to seek recovery in one action for future damages based on pure speculation, because of the intermittent and unpredictable nature of the injury involved. These cases assume that the construction of a permanent structure such as a house by a defendant on his own land necessarily creates a permanent change to the condition of the plaintiffs land, for which an accurate assessment of all damages is possible, without a close examination of the factual circumstances. Such a blanket assumption could have the effect of placing an impossible burden on a plaintiff.

3. Summary judgment on the Count against the Bachmans based upon Graybill’s pleadings and deposition

Finally, we must address the Bachmans’ contention that the trial court’s grant of summary judgment on the counts against them should be affirmed because Graybill alleged damages caused by a substantial or unreasonable increase of the surface waters flowing from their property onto Graybill’s, but stated in his deposition that the water flow from the Bachmans’ property “didn’t seem like a whole lot.” (Deposition of Graybill, R. 94a-95a.)

The Bachmans rely upon the Pennsylvania Superior Court’s decision in Laform v. Bethlehem Township, 346 Pa.Superior Ct. 512, 499 A.2d 1373 (1985) to support their argument. In that decision the Superior Court stated that

where the factors of artificial diversion or unreasonable or unnecessary increase are not present, a landowner is under no duty to tame the surface waters flowing over his land. Failure to control surface waters discharged through a natural channel as a result of ordinary and reasonable development of the land is not negligence.

The Bachmans point out that Graybill testified that when the first flooding occurred, they had not yet begun development of their land.

Thus, the Bachmans assert that, based on Graybill’s pleadings and deposition, this court should conclude as a matter of law that they owed no duty to Graybill, and therefore were not negligent, because his statement is the equivalent of an admission that there was no unreasonable increase in water flow attributable to the Bachmans’ development of their property.

Graybill’s testimony indicates that, in his opinion, the water flow did increase as a result of the construction on the Bachmans’ property. Although he indicated that the amount of water flowing from the property “didn’t seem like a whole lot,” this court cannot rely upon that statement to find that the water flow is not substantial or unreasonable. This court cannot reach a conclusion based on the Bachmans’ characterization of Graybill’s statement to establish that the flow was not unreasonable. Graybill’s opinion is ambiguous and insufficient as a gauge of the legal reasonableness or unreasonableness of the increase of water flow from the Bachmans’ property. Hence, with respect to Graybill’s Counts against the Bachmans’, we reverse the trial court.

Accordingly, with a commendation to the trial judge who astutely followed the precedent now subsequently overruled, the appealed order is reversed, and this case is remanded to the trial court for further proceedings.

ORDER

NOW, June 24, 1991, the decision of the Court of Common Pleas of Lancaster County, dated January 17, 1990, at No. 4205 of 1987, is reversed and the case is remanded to the trial court for further proceedings.

Jurisdiction relinquished.

1 . Section 608.01.3 of the Ordinance provides:

Whenever a development disposes storm water runoff to an adjacent property not within a natural water course or in a manner which exceeds the capability of a water course, approval of the affected owners shall be obtained in writing and a copy filed with the Commission and recorded with the Lancaster County Recorder of Deeds. It is the responsibility of the applicant and/or designer to identify these areas.

2 . Section 13 of the Storm Water Management Act provides:

Any landowner and any person engaged in the alteration or development of land which may affect storm water runoff characteristics shall implement such measures consistent with the provisions of the applicable watershed storm water plan as are reasonably necessary to prevent injury to health, safety or other property. Such measures shall include such actions as are required:

(1) to assure that the maximum rate of storm water runoff is no greater after development than prior to development activities; or

(2) to manage the quantity, velocity and direction of resulting storm water runoff in a manner which otherwise adequately protects health and property from possible injury.

3 . The Findleys and Bachmans based their motions for summary judgment additionally upon Graybill’s failure to set forth sufficient facts to show their duty owed to Graybill. The township in its motion alleged the additional defense of governmental immunity under 42 Pa.C.S. §§ 8541-8542. However, the trial court granted the summary judgment motions based solely on the statute of limitations defense and did not address the other arguments the defendants raised. On appeal to this court, the appellees have not pursued those other arguments, with the exception of the Bachmans who argue that the decision should also be upheld on the basis of Graybill’s allegations and his deposition testimony concerning the amount of water flowing from their property onto his.