Harris v. The Woodlands Club

• Court: Superior Court of Maine
• Decided: March 23, 2009
• Docket: CUMre-08-260
• Status: Unpublished

Opinion

STATE OF MAINE CUNIBERLAND, ss.

J. COLE HARRIS and P. DAPHNE HARRIS,

Plaintiffs

v. ORDER

THE WOODLANDS CLUB and THE WOODLANDS HOMEOWNERS ASSOCIATION,

Defendants

BEFORE THE COURT

This matter came before the court on plaintiffs' motion for attachment of

nearly one million dollars and defendants' motion to strike new affidavits

attached to plaintiffs' reply to defendants' oppositions to the motion for

attachment. For the reasons set forth below, the court denies the plaintiffs'

motion for attachment and grants the defendants' motions to strike the plaintiffs'

supplemental affidavits.

BACKGROUND

This case arises out of Patriot Day Storm of 2007, when the plaintiffs'

property, including the basement of their new home was flooded. Plaintiffs claim

that the water management system located on the Woodlands golf course and

owned and operated by the defendants caused the flooding of their property,

which is adjacent to the golf course. Plaintiffs assert in their complaint causes of

action for statutory trespass pursuant to 14 M.R.S.A. § 7551-B (Count I), common

law trespass (Count II) and negligence (Count III). In support of their motion for

attachment, plaintiffs have filed the affidavit of J. Cole Harris, one of the parties. Plaintiffs own 12 acres of land and a home on Woodville Road in

Falmouth. Harris AfL

a 19-hole golf course and leases the golf course to the Woodlands Club that

manages and operates the golf course. Harris Aff.

the golf course abuts the plaintiffs' property. Harris Aff.

Corporation, a predecessor to the defendants, beginning in 1987, constructed

facilities for the collection, detention, management and dispersion of water,

including storm water, flowing on, over and about the Woodlands Project, which

were required to be constructed in accordance with mandates of various

governmental agencies. Harris Aft.

Corporation failed to construct the water management system in accordance

with the governmental approvals. Harris Aff.

his own comparison of the existing, as-built conditions of the system with the

approved plans for the system and from a hydrologic engineering study

prepared for him by Pinkham and Greer Consulting Engineers. Harris Aff.

Relying on the Pinkham and Greer report, Harris concludes that the

system was not constructed in accordance with the governmental mandates, and,

in particular, some of the water retention ponds were not constructed as

approved and lack the water retention capacity that they were required to have,

causing water to drain onto his property. Harris Aff.

states that several larger water collection swales were constructed on the golf

course by the defendants or their predecessors to keep the third hole dry but, as

built, they discharge water onto the Harris property. Harris Aff.

Harris states that the collection of water from the Woodlands Project and the

discharge of water onto the Harris property are accomplished through drainage

2 ditches, swales, detention ponds, culverts and other facilities that are now owned

and operated by the defendants.

Plaintiffs seek an attachment and attachment by trustee process against

the real and personal property of both defendants in the amount of

$939,827.55, which is comprised of claimed actual damages of $288,275.85, plus

double the amount of such damages, $ 576,551.70, on account of intentional

trespass, and anticipated legal and other professional costs of $75,000. Harris is

not aware of any liability insurance or other security available to satisfy the

judgment in this case. Harris Aff. «JI 14.

Affidavits filed by the defendants set forth a different understanding of

the facts. Defendants filed affidavits of Anthony Hayes, the Falmouth Director of

Public Works from 1986 until July 2007, and David Domingos, the Woodlands

Golf Course Superintendent. According to the defendants, the Harris property

was "lower in elevation and the natural recipient of water runoff from the

Woodlands Club which was higher in elevation." Hayes Aff. «JI9. Shortly after

the Patriot's Day Storm in 2007, Harris, who had purchased his property on

Woodville Road the prior year, contacted the Falmouth Public Works Director

with his concern that the road culvert under the Woodville Road was undersized

and needed replacement. Hayes Aft. «JI«JI 8, 11. The Director inspected the site and

the roadway culvert and the culvert just upstream from the Harris' new

driveway, and concluded that the obstruction of the roadway culvert by the

dislodged silt fence placed by Harris' contractor was "the apparent problem,

along with storm debris that obstructed the culvert under the driveway." Hayes

Aff. «JI 12.

3 According to David Domingos, who began his employment with the

Woodlands in 1996, the original developer, prior to the Club's lease of the

premises, installed the bulk of the drainage system, including the retention

ponds and culverts. Domingos Aft. <]I 3. The Harris property has been wet

property and the lower retention pond has drained onto the Harris property for

as long as Domingos has worked for the Woodlands. Domingos Aft. <]I<]I 6,8. The

Harris property lies below the Woodlands golf course and water from the

Woodlands flows naturally onto the Harris property. Domingos Aft. <]I 7. There

is a drainage ditch on the Harris parcel that predates the Harris purchase, which

diverts water from the Woodlands to the Harris property. Domingos Aft. <]I<]I 9,

10. And, finally, according to Domingos, "[t]he recent changes to the third hole

fairway simply moved water to a preexisting culvert under a cart path near the

Harris property. They should not have changed the volume of water diverted

onto the Harris property." Domingos Aft. <]I 16.

The defendants raise multiple grounds in their opposition to plaintiffs'

motion, including that plaintifts (1) failed to demonstrate the absence of available

and adequate liability insurance to cover any potential judgment; (2) failed to

allege any conduct that is prohibited under the trespass statute; (3) failed to

provide any credible evidence of causation; (4) failed to show trespass under

common law; (5) and failed to identify any breach of any duty owed to them by

the defendants.

DISCUSSION

1. Standard of Review.

Attachment is appropriate in circumstances where it is "more likely than

not that the plaintiff will recover judgment ... in an amount equal to or greater

4 than the aggregate sum of the attachment and any liability insurance." against

the defendant. M.R.Civ.P.4A(c). This standard requires the plaintiff to show

that he or she has "a greater than 50% chance of prevailing." Liberty v. Liberty,

2001 ME 19, n. 4, 769 A. 2d 845, 847.

A plaintiff must file affidavit(s) that support his or her motion and the

affidavit(s) must include specific facts to enable the court to make the requisite

findings with respect to the probability of success and the amount of the

attachment. M.R.Civ.P. 4A(c) and (i); see also Atlantic Heating Co., Inc. v. Lavin,

572 A. 2d 478, 478-79.

2. Use of Supplemental Affidavits in Reply to Opposition of Motion.

Rule 4A(c) requires that an attachment "shall be sought by filing with the

complaint a motion for approval of the attachment. The motion for attachment

shall be supported by affidavit or affidavits meeting the requirements set forth in

subdivision (i) of this rule." Rule 4A(c) authorizes the defendant to oppose a

motion for approval of attachment "by filing material in opposition as required

by Rule 7(c)." Rule 4A(c) does not expressly authorize any further filings by

either party. Even if the court were to construe Rule 7(e) to apply and authorize

a reply memorandum from plaintiffs to defendants' opposition, this does not

allow the plaintiffs to rehabilitate an initial motion by filing supplemental

affidavits after the motion for attachment was filed. 1 Accordingly, the court

strikes the supplemental affidavits filed by the plaintiffs after the initial motion

1The Law Court, as far as this court has been able to determine, has not decided the issue of "rebuttal affidavits". Barrett v. Stewart, 456 A. 2d 10 (Me. 1983).

5 for attachment was filed, including the affidavits of George Marcus, John Larson,

and the second affidavit of J. Cole Harris, dated January 29, 2009?

3. Liability Insurance.

Although Harris asserts in his affidavit that he is not aware of any liability

insurance, in fact, the defendants have liability insurance in excess of the amount

sought by plaintiffs. The Club has liability insurance pursuant to two separate

policies with a total coverage of five million dollars. Domingos Aff. en: 17. The

Association has liability insurance of one million dollars and umbrella coverage

of three million dollars for a total of four million dollars in insurance coverage.

Goldman Aff. en:en: 1 - 3. Thus, there is available liability insurance in an amount

available to satisfy any potential judgment, which this court concludes is the

question raised in Rule 4A. 3

4. Plaintiffs' Claims.

Plaintiffs have filed a three-count complaint, with two counts in trespass and

one count in negligence. Rule 4A requires the plaintiffs file affidavits that

include specific facts that enable the court to find that it is more likely than not

2 Even if the rebuttal affidavits were considered by this court, they contain no facts beyond those already set forth in the first Harris affidavit that make it more likely than not that the defendants' storm management system caused the flooding of plaintiffs' property. See Larson Aff. en: 6. 3 Rule 4A does not require the court to determine whether a defendant will in fact be covered by his or her liability insurer, but rather whether there is liability insurance available in a sufficient amount to satisfy a potential judgment. Even if an insurer is defending under a reservation of rights, this means that the insurer is waiting to decide indemnification at a later point when the actual facts of the care have been determined and can be compared to the insurance contract. See Foremost Ins. Co. v. Levesque, 2007 ME 96, n 2. Motions filed pursuant to Rule 4A are made at a much earlier point in the life of a case and have to be decided before indemnification issues are resolved. Until such issues are resolved, this court concludes that there is available liability insurance in an amount to satisfy any potential judgment.

6 that they will succeed on their claims in an amount equal to or greater than the

aggregate sum of the attachment.

On their statutory trespass claim in Count I, plaintiffs must show that they

owned the land, the defendants intentionally entered their land, caused plaintiff

to suffer a loss by damaging any structure on their property and defendants did

not have plaintiffs' permission. 14 M.R.S.A. § 7551-B(1)(2008)4. Plaintiff must

also show, in addition to trespass, the costs of repairing the damaged property or

the replacement value of the property damages. 14 M.R.S.A. § 7551-B(4). To

double their damages, plaintiffs must show that the property damage has been

caused intentionally by defendants. 14 M.R.S.A. § 7551-B(2).

Under Maine law, a person commits common-law trespass as alleged in

Count II, "if he intentionally enters land in possession of the other, or causes a

thing or a third person to do so." Medika v. Watts, 2008 ME 163,

establishes that the artificial collection, transportation and diversion of water on

to the property of another is an unlawful trespass. Goodwin v. Texas Co., 176 A.

873,874 (Me. 1935); McRae v. Camden & Rockland Water Co., 22 A. 2d 133, 134-35

(1941). However, Maine law recognizes no liability arising merely from the

obstruction or diversion of the natural drainage of surface water. Plaintiffs must

show that the defendants artificially collected water and discharged it onto their

land, "where it would not otherwise naturally have fallen." Johnson v. Whitten,

384 A. 2d 698, 700 (Me. 1978).

4 Section 7551-B(1) establishes statutory liability of a person who trespasses: A person who intentionally enters the land of another without permission and causes damages to property is liable to the owner in a civil action if the person ... (A) does. .. damage to any structure on property not that persons own.

7 In addition to the claims for trespass, the plaintiffs pursue a negligence

claim against the defendants (Count III). To establish negligence, plaintiffs must

show that a duty of care is owed, there was a breach of that duty, and that an

injury to the plaintiff occurred that was proximately caused by the breach of

duty. Bonin v. Crepeau, 2005 :ME 59,

Taken as a whole, plaintiffs are required to show that it more likely than

not that the defendants operated a water management system that artificially

collects water and diverts water from its land onto plaintiffs' land causing

damage where it would not otherwise have naturally occurred. To attempt to

meet this burden, plaintiffs rely on J. Cole Harris' affidavit. Harris' statements in

his affidavit are based on his own observations and his conclusions drawn from a

report prepared for him by Pinkham & Greer Consulting Engineers. Harris'

affidavit does not show that he is qualified to offer opinions on the crucial issues

in this case, that is whether the existing drainage system deviated from approved

plans, whether it directs any unanticipated water onto the plaintiffs' property, or

whether it caused the damage to plaintiffs' property. Generally, expert

testimony is required to assist the court in resolving such issues unless the

answers are so obvious that they may be determined by a court as a matter of

law or are within the ordinary knowledge and experience of lay people. The

questions raised by plaintiffs' complaint do not fit within these exceptions. Even

if the court were to accept Harris' representation that Pinkham & Greer

Consulting concluded that the water management system was not built in

accordance with governmental approvals, Harris does not state that the

engineering report concludes that the drainage of surface water from defendants'

property caused the flooding on plaintiffs' property.

8 Plaintiffs, at this stage, cannot show that it more likely than not that they

would recover damages in the amount sought. Actual damages under 14

M.R.S.A. § 7551-B(4) are "measured either by the replacement value of the

damaged property or by the cost of repairing the damaged property." The cost

of repairing their home after the flooding is $33,275.85. The balance of plaintiffs'

claimed actual damages are comprised of the diminution of the value of their

land that they had hoped to subdivide. It does not appear that they would be

able to collect these additional damages under their statutory remedies. Further,

contrary to plaintiffs' assertions, they would not be entitled to treble damages,

but rather to "2 times the owner's actual damages" if the damage to the property

is caused intentionalli. 14 M.R.S.A. § 7551-B(2). Section 7552(4)(B), in

comparison, authorizes "3 times the owner's actual damages" if a person

knowingly or intentionally violates 14 M.R.S.A. § 7552(2). Maine law requires

that a choice be made to bring an action under § 7551-B or § 7552. Plaintiffs have

chosen § 7551-B; therefore, they are barred from an action under § 7552 and

hence to treble damages. 14 M.R.S.A. § 7551-B(5).

Accordingly, the court concludes that there is no reliable evidence that

supports a conclusion that it is more likely than not that the plaintiffs will prevail

against the defendants and receive a judgment in an amount equal to or greater

than the amount sought in the attachment and the available insurance.

5 There is no evidence that the defendants acted intentionally.

9 The entry is:

It is hereby ORDERED that plaintiffs' motion for attachment and

attachment on trustee process is denied. Defendants' motion to strike the

supplemental affidavits is granted.

The clerk shall incorporate this Order into the docket by reference

pursuant to M.R. Civ. P. 79(a).

DATED: March 23,2009

10 ~ OF COURTS lerland County O. Box 287 Maine 04112-0287

GEORGE MARCUS ESQ - ~ MARCUS CLEGG & MISTRETTA 100 MIDDLE ST EAST TOWER PORTLAND ME 04101

OF COURTS rland County . Box 287 laine 04112-0287

THOMAS MCKEONESQ - ~ t .0 0 0 d / Qo"'\ d ) RICHARDSON WHITMAN LARGE UADGER c-t/0.b PO BOX 9545 . PORTLAND ME 04112-9545

JO\'Q"U \JUUIIlY

O. Box 287 Maine 04112-0287

JONATHAN BROGAN ESQ - \.L),./. W 0 D d 10.,,- d ) NORMAN HANSON & DETROY 0 ~,.......p ow,",-p/,"::> PO BOX 4600 PORTLAND ME 04112-4600 STATE OF MAINE SUPERIOR COURT CUMBERLAND, ss. CIVIL ACTION Docket No. RE-08-260 '.), Y)- ): .; .-: ' --~Tn/- - V Cum~!ri'a~~ ~{cMA 1erk'sINEOffice I .

J. COLE HARRIS, et al., I I

Plaintiffs, AUG I 8 20tt v. RECEIVED ORDER THE WOODLANDS CLUB, et al.,

Defendants.

A jury-waived trial in the above-captioned case was held on May 16-19, 2011,

and the parties thereafter submitted proposed findings of fact and conclusions of law.

The court finds as follows:

1. Plaintiffs J. Cole Harris and P. Daphne Harris are the owners of a 12-acre parcel

of land located on Woodville Road in Falmouth, Maine. The Harrises acquired their

property in December 2004 from Peter Colesworthy.

2. The Harris parcel abuts the northern boundary of the Woodlands Golf Course

near the third fairway and third hole.

3. Defendant Woodlands Club is a not-for-profit Maine corporation which operates

the Woodlands Golf Course. Defendant Woodlands Homeowners Association is a not-

for-profit Maine corporation that owns the common elements of the residential

development known as the Woodlands which surrounds the golf course. The

Woodlands development as a whole comprises approximately 350 acres, including both

the 18-hole golf course and a 95-lot residential subdivision built around the golf course.

4. In addition to the common areas of the residential subdivision, the Homeowners

Association owns the golf course and the associated cart paths and the drainage

facilities. The Woodland Club owns the clubhouse and clubhouse parking area and leases the golf course from the Homeowners Association under a 99-year lease. The

Woodlands Club operates, manages, and maintains the golf course and the cart paths,

fairways, greens, and drainage facilities associated with the course.

5. The original developer of the Woodlands was the Woodlands Corporation,

which subsequently changed its name to Fairway Villas Inc. and will be referred to as

Fairway Villas Inc. in this order for purposes of clarity. Fairway Villas Inc. began

construction of the Woodlands subdivision and golf course in approximately 1987.

6. Before proceeding with construction Fairway Villas Inc. submitted a permit

application to the DEP that included its plans and designs for the proposed

development of the golf course and residential development. Included in the plans and

designs submitted by Fairway Villas Inc. to the DEP were the plans for a stormwater

management system. Based on the various plans and designs submitted by Fairway

Villas Inc. the DEP issued a site location permit on April22, 1987.

7. In 1987, when the DEP permit was issued, the land along the northern boundary

of the Woodlands was owned by Peter Colesworthy. Colesworthy had acquired a

rectangular parcel comprising a portion of the land that later became part of the Harris

property in approximately 1985. At that time Fairway Villas owned the area where the

Harrises later built their residence, and Colesworthy's rectangular parcel protruded into

the proposed Woodlands development.

8. Colesworthy and Fairway Villas agreed to swap land along Colesworthy' s

southern border so that Colesworthy received a triangular area now comprising the

southwest comer of the Harris property in exchange for the portion of his land that

protruded into the proposed Woodlands development.

9. This agreement was reached before the DEP permits were issued, and Fairway

Villas' permit application was based on the boundary as it would exist after the land

2 swap. As issued, the DEP permit was based on the boundary that currently exists

between the Harris property and the Woodlands and on the understanding that the

Harris property would not be part of the Woodlands development.

10. As of the date the DEP permit issued, however, the final transfers of land

between Colesworthy and Fairway Villas had not occurred. Those deeds were executed

on October 6, 1987.

11. In 1993, after the construction of the golf course and residential subdivision had

been completed, Fairway Villas Inc. conveyed title to the development's common areas,

including the golf course, to the Woodlands Homeowners Association.

Topography of Harris Property

12. Prior to any development at the Woodlands, the land later comprising the Harris

property was a topographic low point. As a result, stormwater drained from the future

Woodlands area downslope to the Harris property. In addition, water also drained

onto the Harris property from the other direction, over the Harris property's northern

boundary.

13. The particular watershed relevant to this case (Watershed A) is located on the

northwest portion of the Woodlands development. It now encompasses approximately

25 houses, perhaps a mile of roadway, and three and a half fairways. Before the

Woodlands was constructed, water draining from Watershed A, following the natural

contour of the land, drained onto the Harris property, mostly at a location that has been

designated as Discharge Point A.

14. An aerial photograph from 1985 (Exhibits 273 and 273A) shows a defined

channel leading from Discharge Point A onto the Harris property. Specifically, that

channel leads from a CMP right of way located immediately north of what is now the

3 third fairway across the boundary of what is now the Harris property. After crossing

onto the Harris property, that channel proceeds northeast and then makes a 90-degree

turn to the northwest ending up at a culvert that crosses under the Woodville Road.

15. The 1985 aerial photograph also shows manmade agricultural drainage channels

located in a central field on the future Harris property. Those manmade drainage

channels connect to the drainage channel referred to in paragraph 14, allowing water in

those channels to flow to the Woodville Road culvert.

16. Although it is not possible to determine -how much of the Harris property

constituted wetlands before the Woodlands was developed, the 1985 aerial photograph

demonstrates that significant portions of the Harris parcel were probably wetlands.

Condition of Harris Property at Time of Harris Purchase

17. Before the Harrises purchased their property in 2004, they walked the property.

Those walks occurred in the fall and the Harrises did not observe any water.

18. Cole Harris was aware, however, when he purchased the property that the Town

wetland maps designated a significant portion of the property as wetland. (Exhibit 215,

see also Plaintiffs' Demonstrative Exhibit 36.)

19. Because of wetland concerns, Harris retained a soil scientist named Richard

Sweet to confirm the existence of buildable lots on the property. Sweet provided Harris

with a sketch (Ex. 205), that confirmed the existence of two buildable lots immediately

adjacent to Woodville Road and a third buildable lot at the very back of the property,

along its eastern boundary. Sweet did not formally map the wetlands on the property

but his sketch identified the entire center of the property as wetland. The area Sweet

depicted as wetland covered more than half of the Harris parcel. On the side of the

property bordering Woodville Road, the area Sweet designated as wetland included

4 everything but a narrow slice containing the two buildable lots. Sweet's sketch also

showed the existence of a stream flowing from the wetland area and cutting between

the two buildable lots to the culvert on Woodville Road.

20. After the Harrises purchased the property, Sweet did further work to estimate

the buildable area of the portion of the property where the Harrises intended to build

their residence. This was at the southwest corner of their parcel along Woodville Road.

Sweet estimated that the buildable area was only .87 acres and provided another sketch

which showed that the building site was closely bordered on the east by wetland.

(Exhibit 204). That sketch also showed a "stream" in the same location as the defined

channel on the 1985 aerial photograph, flowing in a northeasterly direction from the

approximate location of Discharge Point A and then circling around the area where the

Harrises built their residence.

21. Aerial photographs that postdate the construction of the Woodlands Golf Course

but predate the construction of the Harris residence (e.g., Exhibit 278) show the same

defined channel leading from Discharge Point A as the 1985 aerial photograph. Those

photographs also show the same manmade drainage channels in the Harris field.

22. Before they purchased the property and before they built their residence, the

Harrises knew or had ample reason to know that the Harris property included

substantial portions of wetland and that it received stormwater runoff from the

Woodlands.

23. At the time the Harrises purchased their property, all of the drainage features at

the Woodlands of which they now complain (the culverts, field inlets, and spillway)

had already been constructed and were in place.

5 DEP Permit Issues

24. The Woodlands stormwater management system, as constructed, varied from the

designs and plans approved by the DEP.

25. As designed, the stormwater management plan consisted of various natural and

manmade features, including swales and culverts, intended to slow down the drainage

of water to the areas where it would naturally discharge, including the Harris property.

Included among those features were topographic bowls or basins artificially created or

already existing as part of the landscape. Such bowls are typically not filled with water 1

but are available to catch and retard stormwater flows.

26. The stormwater management feature of particular relevance to this case was a

basin that included part of the third fairway near the boundary of the Harris property.

The stormwater management plan, as designed, called for an elevated golf cart path

along the CMP easement south of the Harris boundary line to serve as the northern

edge of this basin at an elevation of 118' with a spillway at Discharge Point A south of

the Harris boundary.

27. As constructed, the northern edge of that basin was a foot lower than shown on

the approved plans. In addition, two culverts not shown on the approved plans have

been placed along the rim of that basin south of the Harris boundary? Finally, the

spillway as constructed is longer than the spillway shown on the approved plans.

28. A number of small field drains have also been placed in the third fairway. Most

of those field drains lead to small drainage pipes placed under the third fairway. One

1 Or not entirely filled with water. Some of the water hazards on the Woodlands Golf Course are within the bowls but comprise only a small fraction of the bowl area. The areas of water on both sides of the third green (see Exhibit 277) thus serve both as water hazards and as detention ponds within a larger topographical bowl that is part of the stormwater management system. The Harrises' hydrologist believed that the DEP approved plan called for a spillway but no culvert at Discharge Point A. Based on the testimony of Vamvakias the court finds that one culvert in the area of the spillway was contemplated in the plans.

6 of those drainage pipes leads in the direction of a culvert that is located along the

northern rim of the bowl at the edge of the Harrises' land. The other drainage pipe

crosses the fairway but does not lead to a culvert. Although the Harrises attach great

significance to these field drains, they mostly serve to divert water off the fairways and

underground, where it remains in the drains and the drainage pipes. In most cases,

except in significant rainstorms, water does not flow from the field drains in the

direction of the Harris property.

29. After the Harrises brought the variances between the Woodlands drainage

features as constructed and the stormwater plan as approved to the attention of the

DEP, the DEP in June 2009 issued a notice of potential violation to the Woodlands

Homeowners Association and to Fairway Villas Inc. Such a notice may or may not

ultimately lead to enforcement action by the DEP. The DEP has received responses to

its notice of violation from Fairway Villas Inc. and the Woodlands Homeowners

Association. As of the time of trial, no further action has been taken.

30. It is unclear which features of the stormwater system as constructed are the

subject of the DEP's notice of violation. 3

31. Despite the variance between the approved plan and the stormwater system as

constructed, there is no dispute that the purpose of stormwater management, from the

DEP's point of view, is to control the rate at which stormwater flows onto neighboring

properties in order to control erosion and prevent sudden surges of stormwater from

flooding downstream properties.

32. The evidence at trial established that the Woodlands stormwater system, as

constructed, has succeeded in controlling the rate at which stormwater flows onto the

Harris property. The post-development rate at which stormwater flows across the 3 For instance, there is no evidence that DEP regarded the field drains as a potential violation.

7 northern boundary of the Woodlands meets DEP requirements and does not exceed the

rate at which stormwater flowed onto the Harris property prior to the development of

the Woodlands residential development and golf course. 4

Increased Volume of Stormwater

33. Although the peak rates of stormwater flow have not increased, the Harrises

proved - and defendants do not dispute - that the Woodlands development has

increased the total volume of stormwater discharged onto the Harris property during or

immediately after storm events.

34. A "storm event" is a rainstorm. Hydrologists refer to storm events based on

their probability of occurring within a specific time period. Thus a two-year storm

event is a storm that is expected to occur once every two years. A ten-year storm event

is a storm that is expected to occur once every ten years.

35. If the Woodlands had not been developed, some portion of the rain that would

fall in any given storm event would have been absorbed by vegetation, trees, and other

natural features of the land. Once the Woodlands was constructed with such features

as house roofs, driveways, roadways and the golf course, less stormwater would be

absorbed by the natural features of the land and more stormwater runs off onto

neighboring properties (like the Harris property) that are downslope from the

development.

36. This is uniformly true every time undeveloped property is developed.

37. Calculations by the Harrises' expert hydrologist indicate that in a two-year storm

event, the Woodlands now discharges approximately 1,834,068 gallons at Discharge

Point A near the southern boundary of the Harris property. His calculations indicated 4 This may be why the DEP has not yet decided whether or not to seek enforcement action.

8 that if the Woodlands had not been built, a two-year storm event would have resulted

in the discharge of 1,398,181 gallons. Therefore, in a two-year storm event more than a

million gallons would have been discharged onto the Harris property even in the

absence of the Woodlands, but the development of the Woodlands is estimated to result

in an increased discharge of 436,937 gallons - a 31% increase. Exhibit 218A. The

Woodlands thus accounts for 24% of the stormwater discharged at the southern

boundary of the Harris property during a two-year storm event (436,937 + 1,834,068).

38. Larger storms result in further increases in volume, although in larger storms the

relative impact of the Woodlands development is considerably less. Thus, a ten-year

storm event in the absence of the Woodlands would be estimated to discharge 3,694,247

gallons at Discharge Point A and the development of the Woodlands is estimated to

result in an increase of 481,901 gallons - a 13% increase - for a total discharge of

4,176,148 gallons. Id. Similarly, a 25 year storm event would be estimated to discharge

4,919,037 gallons at Discharge Point A in the absence of the Woodlands, and the

development of the Woodlands is estimated to result in an increase of 524,585 gallons

(10.7%) for a total discharge of 5,443,622 gallons. Id.

39. Except for one culvert which was not shown on the plan approved by DEP

(referred to during the trial as the "third fairway culvert''), the Harrises' hydrologist did

not make any measurements with respect to the rate or volume of discharge from any

particular features of the stormwater system. There is no evidence as to the extent, if

any, that variances between the system as approved and the system as constructed

resulted in any increase in the volume of stormwater discharged.

40. All of the increased stormwater runoff discharged onto the Harris property from

the Woodlands is runoff that would have been discharged onto the Harris property if

9 the Woodlands had not implemented any stormwater management system to collect

and channel stormwater.

41. The Woodlands defendants know to a substantial certainty that to the extent that

stormwater originating in Watershed A is discharged along the northern boundary of

the third fairway, that discharge will result in the physical presence of stormwater on

the Harris property.

42. At the location of the third fairway culvert, the Harrises' hydrologist estimated

that in a one-year storm producing 2.5 inches of rainfall over a 24-hour period (Ex. 226),

water would begin flowing onto the Harris property at approximately the twelve-hour

mark and would continue flowing for approximately 12 hours. After 42.5 hours only a

single cubic foot of water would remain on the Harris property.

43. The Harrises' experts agreed that the third fairway culvert is located at the

bottom of a natural swale or drainage that has always shed water onto the Harris

property. It is logical to infer that the placing of a culvert has increased to some extent

the amount of water that is discharged onto the Harris property from the area of the

third fairway drains when rainstorms occur. Based on Exhibit 226 and the other

evidence adduced at trial, the court finds that the increase at the third fairway culvert

has been minimal.

Overall Effect on Harris Property

44. Although the Harrises testified that the amount of stormwater drainage onto

their property has significant! y increased since they purchased their property in late

2004, that testimony was not supported by the evidence. For one thing, as noted above,

the existence of a stream that circled the area where they built their residence and then

ran through the Woodville Road culvert was apparent on the face of the earth before the

10 Woodlands was constructed and was also identified in Sweet's drawings in late 2004

and early 2005. In addition, the Harrises have become hypersensitive on the subject of

stormwater, in part because of the 2007 Patriot's Day storm which occurred during the

first year they occupied their residence. 5 That storm, which produced rainfall in excess

of a 25-year storm event, flooded the Harrises' property and many other properties in

southern Maine. Their hypersensitivity on the subject of stormwater has led the

Harrises to blame the Woodlands for things such as noise from tree frogs. Because of

their hypersensitivity on the subject of stormwater, the court finds that the Harrises'

testimony as to the effect on their property, while sincere, was exaggerated.

45. Based on all the trial evidence, however, the court finds that because the period

since 2004 has coincided with years in which there has been more than average rainfall,

there has been some increase in stormwater drainage onto the Harris property since it

was purchased in 2004. 6

46. Looking back to the effect on the Harris property since 1993, when the golf

course and residential subdivision were completed, it is undisputed that a greater

quantity of stormwater now discharges onto the Harris property (see«[ 37-38 above) and

the property is wetter as a result.

47. One of the issues contributing to the wetness of the property is that the culvert

under Woodville Road from which stormwater exits the Harris property is undersized.

(See, e.g., Defendants' Ex. 212). Water discharged onto the Harris property therefore

takes longer to drain off and some more water is absorbed by the Harris property in the

interim. Because the Woodville Road culvert is on land belonging to the Town of

5 The Harrises began construction on their house in 2005, and moved in sometime in 2006. 6 The estimates of increases in storm water resulting from the Woodlands development made by the Harrises' hydrologist (set forth in 9[9[37-38 above) include increases resulting from additional rainfall as well as increases resulting from the Woodlands development.

11 Falmouth downslope from the Harris property, no trespass or other legal remedy

appears to be available to the Harrises as to cause the town to increase the size of the

Woodville Road culvert.

48. Photographic evidence submitted by the Harrises demonstrates that during or

after large rainstorms, there is standing water on portions of the Harris property. This

is particularly true when the ground is frozen. At other times the property is dry.

Compare Plaintiffs' Ex. 22GG with Defendants' Ex. 270. The areas where there is

standing water in the aftermath of a large storm are largely the areas that constituted

wetlands before the Woodlands was developed.

49. Stormwater also flows onto the Harris property from the north, the side away

from the Woodlands, and that has contributed to the wetness complained of by the

Harrises.

50. In order to access the back corner of their property, the Harrises constructed a

driveway bisecting the field that comprises the middle of their parcel. Several culverts

have been placed under that driveway, which becomes a sort of causeway when there is

standing water in the field, and the evidence at trial demonstrated that when there is

water in the field, that water flows through the culverts from north to south. In that

part of the field, therefore, more storm water is draining onto the Harris property from

the north than from the Woodlands. Photographic evidence offered by the Harrises

shows occasions when there is water in the field (e.g., Plaintiffs' Ex. 22BB), but that

water is not caused by runoff from the Woodlands.

51. The stormwater coming from the north is impeded by the driveway constructed

by the Harrises and has therefore resulted in making the field wetter. The water from

the north that eventually passes through the culverts in the driveway joins with the

12 stream shown on Exhibit 204 and flows off the Harris property via the Woodville Road

culvert.

52. According to the calculations of the Harrises' hydrologist approximately

1,835,068 gallons are discharged from the Woodlands at Discharge Point A in a two-

year storm event. In the same storm event the volume of stormwater at the Woodville

Road culvert is approximately 2,325,114 gallons, indicating that at least 490,000 gallons

constitutes stormwater discharge from sources other than the Woodlands including

runoff from the Harrises' northern boundary and from the Harris property itself.

Exhibit 218A.

53. The fact that, in a two year storm event, there is an increase of 436,537 gallons in

the volume of stormwater at Discharge Point A and an increase of 490,049 gallons in the

volume at the Woodville Road culvert (Ex. 218A) demonstrates that a significant

portion of the Woodlands stormwater discharge is not retained on the Harrises

property but exits that property at the Woodville Road culvert.

54. Although, as noted earlier, a significant portion of the Harris property was

shown as wetlands on the town map (Ex. 215), the Town's wetland mapping was

conducted during the early 1990s around the time that the Woodlands was being

completed. The court infers from Exhibits 273 and 273A and from the other evidence at

trial that a significant portion of the Harris parcel would have constituted wetland

before the Woodlands was developed and that the buildable portions of the Harris

parcel, before the Woodlands was developed, were the same as those later designated

as "building windows" on Exhibit 205.

55. The Harrises contend that before the Woodlands was developed, there was also a

buildable area along the southern border of the Harris property to the east of the

drainage swale leading from Drainage Point A to the stream that circles the area where

13 the Harrises built their residence. This is the so-called "area of concern" referred to by

the Harrises' soil scientist, Albert Frick. However, there was also natural drainage onto

the Harris property in the area of concern before the Woodlands was developed.

56. Although the court does not find that the Harrises proved that the area of

concern would have been a buildable lot before the Woodlands was developed, it does

find that, as a result of the development of the Woodlands, the amount of wetlands on

that portion of the Harris lot has increased to some extent. The exact amount of that

increase cannot be determined.

57. In addition, the court finds that, as a result of the development of the

Woodlands, the amount of wetlands on the southwest corner of the Harris property- in

the immediate vicinity of Discharge Point A- has increased marginally.

58. Other increases in the amount of wetlands - along the furthest east portion of the

Harris property, along the northern boundary of the Harris property, and in the field-

were not caused by the Woodlands.

59. The injunctive relief proposed by the Harrises in a draft order submitted at the

time of trial - an injunction precluding any discharge of water from the Woodlands

onto the Harris property and requiring the construction of a coffer dam along the

northern boundary of the Woodlands abutting the Harris property - would be

completely impractical and was described by the Harrises' own hydrologist as an

"absurd" solution.

Conclusions of Law

Both plaintiffs and defendants agree that the applicable precedent governing the

Harrises' common law trespass claim is Johnson v. Whitten, 384 A.2d 698 (Me. 1978). As

discussed in the court's September 28, 2010 order, that case adheres to the "common

14 enemy" or modified "common enemy" doctrine that currently 1s the minority rule

among U.S. jurisdictions? As stated in that decision:

[It] is well established that any proprietor of land may control the flow of mere surface water over his own premises, according to his own wants and interests, without obligation to any proprietor either above or below .... He may prevent surface water from corning upon his land according to its accustomed flow, whether flowing thereon from a highway or any adjoining land. (citation omitted). He may prevent its passing from his land in its natural flow .... He may erect structures upon his own land as high as he pleases without regard to its effect upon surface water, no matter how much others are disturbed by it.

384 A.2d at 700-01, quoting Morrison v. Bucksport & Bangor R.R. Co., 67 Me. 353, 355-56

(1877).

Johnson v. Whitten noted that a landowner could only be held liable for trespass if

the landowner artificially collects surface water and then causes it to be discharged on

an adjoining property "on which the water would not otherwise have fallen naturally."

384 A.2d at 700, citing McRae v. Camden & Rockland Water Co., 138 Me. 110 (1941);

Goodwin v. Texas Co., 133 Me. 260 (1935). This is the "artificial collection" exception to

the Johnson v. Whitten principle that a landowner may use his property as he pleases for

all lawful purposes. 384 A.2d at 701. The Harrises rely on the artificial collection

exception in this case.

7 See September 28, 2010 order at 3 n.2, noting that other states have migrated to a "reasonable use" rule. In their proposed findings of fact and conclusions of law submitted after trial, defendants note that in 2006 the Legislature passed "An Act to Replace the Common Enemy Rule with Regard to Changing the Flow of Surface Water." Laws 2005 ch. 564, codified in 17 M.R.S. § 2808. That legislative change originated in Committee Amendment "A" to L.D. 816, 122nd Legis., 2nd Sess. (2006) and the Legislative Summary submitted with that amendment states that the proposed amendment was intended to reject the common enemy rule and adopt the reasonable use rule. In this case, however, the Harrises never relied upon or cited 17 M.R.S. § 2808. That statute creates a cause of action for nuisance based on unreasonable use and is applicable to causes of action accruing after January 1, 2007. See Laws 2005 ch. 564. In this case the Harrises based their claims on common law trespass, rather than on nuisance, and their cause of action accrued prior to January 1, 2007. As a result, this case stands or falls on Johnson v. Whitten.

15 Under Johnson v. Whitten, therefore, the liability of the Woodlands Club and

Homeowners Association depends on whether they (1) "artificially collect" surface

water and (2) cause artificially collected surface water which would not otherwise have

fallen naturally on the Harris property to be discharged on that property.

There is a third requirement for common law trespass, which is that the entry

onto another person's property must be intentional. However, the intent requirement is

satisfied if a defendant merely knows "to a substantial certainty" that the defendant's

act "will result in physical presence on the land." Gibson v. Farm Family Mutual

Insurance Co., 673 A.2d 1350, 1353 (Me. 1996). As found above, assuming the other

Johnson v. Whitten criteria are met, the Woodlands defendants here know to a

substantial certainty that stormwater from the Woodlands will be discharged in the

direction of the Harris property and that such discharge will result in the physical

presence of stormwater on the Harris property.

The extent to which the Woodlands stormwater drainage system "artificially

collects" surface water is a closer question than it appears. From the examples given in

Johnson v. Whitten, see 384 A.2d at 700 (discussing facts in McRae and Goodwin cases), the

court has little difficulty concluding that the two third fairway water hazards -which

did not exist prior to the development of the Woodlands course 8 - constitute an artificial

collection of water. One of those water hazards includes a culvert through which water

travels in the direction of the Harris property during a storm event. (See Exhibit 228).

Whether the golf cart path along the third fairway which forms the northern

boundary of the topographic bowl that comprises part of the Woodlands stormwater

system constitutes an artificial collection of water is less clear. As a matter of logic, the

court would conclude that this feature is designed to collect stormwater. On the other 8 See Exhibit 273.

16 hand, it is hard to distinguish the golf cart path from the barrier or roadway in Johnson

v. Whitten which the Law Court did not find to be an artificial collector of surface water.

384 A.2d at 700. Because the basin at the Woodlands northern boundary is designed to

impound stormwater in order to retard its rate of flow and because the basin was

artificially constructed, at least in part, the court concludes that it would constitute an

artificial collection of surface water.

Similarly, the placement of a culvert can be seen as constituting an artificial

collection of water in order to concentrate its flow. The inherent difficulty in this

concept, however, is that if a culvert constitutes an artificial collector of water, it is

difficult to reconcile that conclusion with the statement in Johnson v. Whitten that a

proprietor of the land "may control the flow of mere surface water over his own

premises." Id.

For purposes of this decision, the court concludes that the creation of a

topographical basin at the Harrises' southern boundary constitutes the artificial

collection of water within the meaning of Johnson v. Whitten (even though it is collected

in order to retard the peak flow of stormwater) and will therefore consider the final

aspect of the Johnson v. Whitten exception- whether the Woodlands drainage system

discharges stormwater upon land belonging to the Harrises "where it would not

otherwise naturally have fallen."

The Harrises argue that in the absence of the Woodlands, some of the storm water

that is now discharged onto their property would have been absorbed by vegetation

and that the increase in stormwater discharge resulting from development of the

Woodlands therefore constitutes the discharge of water where it would not otherwise

have fallen. The alternative argument offered by the Woodlands defendants is that,

both before and after development of the Woodlands, the Harris property was a

17 topographical low and stormwater from Watershed A drained onto the Harris property.

Although there has been an inevitable increase in runoff as a result of the development

of the Woodlands, the defendants point out that the increased runoff is falling on the

same location where it would have fallen if they had never installed a stormwater

management system.

Put another way, the issue before the court is whether, under Johnson v. Whitten,

the discharge of water "where it would not otherwise naturally have fallen" applies to

water that would not naturally have fallen on the Harris property pre-development or

whether it only applies to water that would not naturally have fallen on the Harris

property after the Woodlands was developed. A review of the Johnson v. Whitten

decision leads the court to the conclusion that the latter is the correct rule of law.

In johnson v. Whitten, the Law Court stated, "absent an artificial collection of water

which is discharged, Maine law recognizes no liability arising, per se, merely for the

obstruction, or diversion of the natural drainage of surface water." 384 A.2d at 700

(emphasis in original). In a passage quoted above, it added that a landowner

may erect structures upon his own land as high as he pleases without regard to its effect upon surface water, no matter how much others are disturbed by it.

Id., quoting Morrison v. Bucksport & Bangor R.R. Co., 67 Me. at 356.

Thus, Johnson v. Whitten establishes that if the Woodlands had been developed

without any artificial collection of water or other stormwater management system, there

would be no liability to the Harrises. As the court has previously noted/ it would be

difficult to justify a rule of law that would relieve the Woodlands defendants of liability

if they had not undertaken any stormwater control measures but would subject them to

liability because they created retention ponds to comply with DEP regulations. This is 9 See September 28, 2010 order at 4 n.S.

18 particularly true where it is undisputed that the Woodlands stormwater system

successfully impedes the rate at which stormwater flows onto the Harris property to the

point where that rate does not exceed predevelopment levels.

This would be a different case - and squarely within the Johnson v. Whitten

"artificial collection" exception - if the Woodlands was redirecting stormwater in a

different direction than it would otherwise flow and onto property that was not the

natural downslope recipient. In this case, however, the Harris property was the natural

downslope recipient of stormwater from Watershed A before the Woodlands was

developed and is the natural downslope recipient of increased stormwater as a result of

the residential subdivision and golf course.

This is not to suggest that while increased stormwater discharge is an inevitable

result of development, it cannot have an adverse impact on downslope landowners.

Allowing neighboring development to submerge an adjoining property is a potentially

harsh result. That is what the Harrises contend is happening in this case.

There are two answers to this contention. The first is that the Johnson v. Whitten

rule necessarily contemplates harsh results in certain cases. The plaintiffs in Johnson v.

Whitten were given no remedy although their neighbor's construction of roadway

created a barrier that caused them to experience flooding in their basement and on their

surrounding land, especially in heavy rainstorms. 384 A.2d at 700.

The second answer is that this is not a case where the development of the

Woodlands has resulted in submerging the Harris property. As set forth in the facts, a

significant portion of Harris property was wetland before the Woodlands was

developed. There was a well-defined drainage channel or stream circling the area

where the Harrises later built their residence, and the property was wet enough that

there were manmade drainage channels in the central field. The construction of the

19 Woodlands has lead to an increase in stormwater runoff, which has resulted in

marginal increases in the amount of wetlands on the property, but most of the increased

stormwater flows along existing swales and channels and exits the Harris property

through the Woodville Road culvert.

In its decision on the cross motions for summary judgment, the court suggested

that an increase in the volume of stormwater can constitute a trespass. September 28,

2010 order at 5. That observation was made in the context of a dispute between the

parties as to whether defendants were entitled to summary judgment if it was

undisputed that the defendants' stormwater system had succeeded in reducing the

peak rates of stormwater flow even if the volume of stormwater had increased. At the

time the court suggested that an increase in volume could constitute a trespass, the

court also noted that there was a disputed issue for trial as to whether the increased

storm water would in any event have drained onto the Harris property. Id. at 4-5.

With the benefit of the trial evidence and further review of Johnson v. Whitten in

light of the trial evidence, the court now adopts the view that an inevitable increase in

stormwater resulting from development does not constitute a trespass under Johnson v.

Whitten when the increased stormwater flows onto property that, both pre and post

development, would be the natural recipient of the stormwater runoff in question.

The court has not overlooked the Harrises' evidence that the Woodlands

stormwater system, as constructed, varies from the plans that were approved in the

DEP permitting process. However, the Harrises have brought no authority to the

court's attention- and the court is aware of none- that there is a private right of action

to enforce DEP permit requirements. The court concludes that if Fairway Villas or the

Woodlands defendants have committed any violations of DEP permits, statutes, or

regulations, any such violations may be enforced by DEP but do not affect the Harrises'

20 claim for common law trespass. This is particularly true where, with the exception of

the third fairway culvert, the Harrises' hydrologist did not testify that the variance from

DEP permits contributed to any increase in the volume of stormwater discharged at the

Woodlands northern boundary, and the trial evidence demonstrated that any increased

volume of stormwater from the third fairway culvert was minimal. The court expresses

no opinion as to any enforcement action that may be brought by DEP or as to what

relief might be available in such an action.

The Harrises also argue that the developers of the Woodlands should have

obtained a drainage easement. They point out that before the land swap with

Colesworthy, Fairway Villas owned the southwest corner of what became the Harris

property and could have retained a damage easement over that portion of the property

when it was transferred to Colesworthy. This argument does not alter the outcome of

this case for at least two reasons. First, the Harrises are suing the Woodlands Club and

the Woodlands Homeowners Association, not Fairway Villas, and neither the Club nor

the Association ever owned any portion of the Harris property.

Second, and more importantly, whether a common law trespass has occurred

under Johnson v. Whitten does not depend on whether the alleged trespasser or any

predecessor in title ever previously owned the land subject to the alleged trespass. The

suggestion that parties are free to negotiate drainage easements presumes that in the

absence of such easements, any increased stormwater from development constitutes a

common law trespass if the party developing the land has taken any measures to collect

and channel stormwater. The court agrees with defendants that the interpretation of

Johnson v. Whitten proposed by the Harrises would mean that whenever any landowner

developed its property in a manner that increased stormwater runoff (even for example,

by paving a driveway) and collected the surface runoff in some fashion (e.g., by

21 excavating a small basin leading to a culvert), downstream neighbors would be entitled

to demand payment for a drainage easement or to obtain damages and/ or injunctive

relief for common law trespass. This would sweep far too broadly.

In sum, the court concludes that under the facts in this case the increased volume

of stormwater does not make the Woodlands liable for trespass under Johnson v.

Whitten. However, because there is considerable room for dispute as to the

interpretation of Johnson v. Whitten and the applicable law in this case, the court will

also address the issue of relief.

Assuming for purposes of argument that the increased stormwater runoff

constituted a common law trespass, the Harrises are now seeking only equitable relief.

This followed the exclusion by the court of certain of their damage evidence and a

decision by the Harrises to withdraw their remaining damage claims.

In order to be entitled to equitable relief, in addition to a requirement of success

on the merits, the Harrises would have to prove (1) that the harm they were facing was

irreparable and that they did not have an adequate remedy at law, (2) that the balance

of harms favored the grant of injunctive relief, and (3) that the award of injunctive relief

would be in the public interest. Windham Land Trust v. Jeffords, 2009 ME 29 «:_[ 41, 967

A.2d 690, 702.

In this case, there are two obstacles to injunctive relief. The first is that the court

is unable to conclude that the balance of harms would favor the Harrises. The original

injunctive relief requested by the Harrises - an injunction against any stormwater

discharge onto their property and a requirement that the Woodlands defendants build a

coffer dam along their northern boundary to effectuate that injunction - was dismissed

as absurd by the Harrises' own expert. In their post-trial submission the Harrises have

amended their request to seek an injunction prohibiting the discharge of any

22 stormwater runoff onto the Harris property "in excess of amounts that would have been

discharged in the natural state." Their proposed order envisages an elaborate

procedure involving the submission of plans under the supervision of a Special Master

to develop a plan whereby the excess stormwater would be diverted away from the

Harris property at the Woodlands' expense.

Given the court's findings (1) that the Harris property was the natural recipient

of stormwater from Watershed A before any development at the Woodlands, (2) that

significant portions of Harris property were wetlands before any development at the

Woodlands, (3) that there were well-defined stormwater drainage channels on the

Harris property coalescing into a stream before the Woodlands was developed, (4) that

those conditions were no less apparent after the construction of the Woodlands, (5) that

the Harrises were on notice of those conditions before they purchased their property,

and (6) that the amount of stormwater runoff onto the Harris property not resulting

from the Woodlands is at least three times the amount contributed by the development

of the Woodlands, the court does not find that the balance of harms would favor the

Harrises even if it were to adopt more modest injunctive relief than the complex and

costly scheme proposed by the Harries- a scheme more suited to the AMHI Consent

Decree than the property dispute involved here.

More fundamentally, the court concludes that any harm to the Harrises is not

irreparable because they had an adequate remedy at law in the form of money

damages. The court excluded certain of the Harrises' damage evidence based on

discovery violations and evidentiary rulings, 10 and the Harrises then chose to withdraw

10 The court will not revisit those rulings except to note that the reasons are set forth on the record and in the court's May 12, 2011 orders. By way of example, the Harrises' calculations did not account for the fact that three quarters of the stormwater discharged on their property in a two-year storm event would have been discharged even if the Woodlands had not been

23 their remaining damage claims. That does not convert any damage they suffered into

irreparable harm. To the extent that the Harris property has been damaged by the

increased volume of stormwater, and to the extent that damage constituted a common

law trespass, that harm would have been fully compensable in money damages.

In the post trial submissions, the Harrises argue that the discharge of stormwater

constitutes a continuing tort that, in the absence of injunctive relief, would lead to

repetitive actions for damages. In this case, however, the Harrises have never sought

damages for current ongoing losses in the form of expenses they have incurred because

of increased storm water or in the form of lost rental value. Instead, they have sought to

recover the alleged loss in the overall market value of their property resulting from the

increase in stormwater discharge. To the extent they could have proven any such loss in

market value, they would have had an adequate remedy at law in the form of damages.

As a result, the court concludes that even assuming that the facts in this case

would lead to a finding that the Harrises are entitled to relief for common law trespass,

injunctive relief would not be available.

The entry shall be:

Judgment shall be entered for defendants on plaintiffs' common law trespass

claim, with costs. The clerk is directed to incorporate this order in the docket by

reference pursuant to Rule 79(a).

DATED: August 15f: , 2011 -~~ Thomas D. Warren Justice, Superior Court

developed. Those calculations also assumed the Harrises would have to incur the expense of rebuilding an entire new residence, at current prices, even though there was no evidence that their existing residence, built in 2005-06, had been damaged by increased runoff.

24 J C HARRIS VS THE WOODLANDS CLUB UTN:AOCSsr -2008-0131797 CASE #:PORSC-RE-2008-00260

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