Henderson v. Hines

183 N.W. 531, 48 N.D. 152, 1921 N.D. LEXIS 21

• Court: North Dakota Supreme Court
• Decided: June 6, 1921
• Status: Published

Opinions

Bronson, J.

This is an action for damages caused by flood waters. The defendant has appealed from a judgment entered upon a general verdict and special questions submitted to the jury. The identical property that was involved in Soules v. N. P., 34 N. D. 8, 157 N. W. 823, L.R.A. 1917A, 501, is involved in this action. The same drainage area and the same drain-way that were involved in Soules v. N. P., supra, Boulger v. N. P., 41 N. D. 316, 171 N. W. 633, and Reichert v. N. P., 39 N. D. 114, 167 N. W. 127, are likewise concerned. In the three cases mentioned damages were asserted through a storm which occurred on July 28, 1914. In this action damages are claimed for a storm that occurred on August 21, 1918. In the Reichert .and Boulger cases, supra, the properties involved were located about a block, wiestward or northward, from the property involved herein. The following facts appear in the record:

Under conditions in a state of nature, prior to the development and growth of the city of Dickinson, as well as the construction of the defendant railway, there existed a territory composing a part now of the city of Dickinson and comprising about 168 acres, which naturally drained into a so-termed drainway southeasterly across the right of way of the defendant, and thence into the Heart river. In the growth and development of the city this drainage area has been platted into blocks and streets with connecting sewer facilities, grading of streets, curbs, gutters, ditches, and culverts. In this drainage area, plaintiff’s leased property (lot 13, block 5) is situated, fronting upon Villard street, which abuts upon and parallels defendant’s right of way. Comparatively considered, this drainage area, block 5, is rather low and flat, the grounds to the northward and westward sloping and being higher. The surface waters accordingly flow from the northward or westward along or towards block 5 southeasterly, where eventually they passed through this drainway into the Heart river. The defendant, in the improvement of its right of way several years ago, removed a bridge over this drainway, and has filled up the lands in the low places around this drainway, and installed a cast iron culvert under its right of way 250 feet in length, and 4 feet in diameter, with a drop or slope of 5 feet, and a cross sectional area of 12)4 square feet. There the embankment of this right of way is some 4 feet above the north end of the culvert, and, extending in a westward- direction along Villard street, is higher than the crown of the street in front of plaintiff’s property. There the gutter is 12 inches, the curb inches, and the level of plaintiff’s street line, 3 inches lower than the crowm of the street. In addition, upon the right of way and upon the site of a part of this old drainway, there was constructed a wholesale grocery building abutting upon Villard street. There this drainway was filled up or obstructed. In lieu thereof, in the street with the permission of the city, the defendant installed a double concrete culvert about 185 feet long, with a cross sectional area of about 24 square feet. This culvert connected on the east end with an open ditch that ran some 100 feet, emptying into the culvert in the right of way, and on the west side with city culverts. These city culverts were located at the intersection of Villard street and Second avenue, two running east and west, and two, north and south, and having a cross sectional area of about 19 square feet. Thus were methods of disposition provided for the surface waters of this drainage area. If the city culverts were unable to take care of the water, the resultant effect was an overflow upon the street there which, except through the culverts, could not escape southward off the street along the old drainway by reason of the railway embankment, the construction of the wholesale grocery building, and the filling up of the old ditch or drainway there formerly existing.,

On August 21, 1918, between 9 and 10 a. m., a heavy rain, accompanied by some wind, fell to the extent of 1inches at Dickinson. Witnesses varied as to its duration from 20 minutes to one hour. Plaintiff testified that it lasted about one hour. In a short time the streets surrounding block 5, particularly Villard street, were overflowing with water. Into the basement of plaintiff’s hardware store, the water ran in through manholes in the front sidewalk and through basement windows broken by the pressure of the water. The water filled his basement (8 feet deep), .and rose upon the ground floor to a depth of about 10 or 11 inches.

The same day, the water receded upon the ground floor. It was the third day before the basement was entirely drained, the sewer appearing to be clogged. Plaintiff testified that the water in the street was coming from the west and the east; that when it came into the store it was backing up from the east (that is, from the place where the city culverts are located some 150 feet eastward. Numerous witnesses testified. Testimony was introduced that Villard street in front of plaintiff’s property was a sheet of water clear across; that the streets surrounding block 5 were flooded with water. One witness testified that there seemed to be a lake of water down First street (north of block 5) and Second avenue (east of block 5). Another witness testified that at the Masonic Temple, two blocks northward and westward from plaintiff’s property, and where the elevation is 19 inches higher than plaintiff’s property, the water rose upon the building to the depth of 3 inches. One of plaintiff’s.witnesses testified that as soon as the storm stopped somewhat he stárted from a store in the same block as plaintiff’s property, but on higher ground. Fie waded all the way around the streets to plaintiff’s property; water up to the knees, more or less, dependent Whether walking in the streets or upon the sidewalk; he walked over to the culvert in the right of way; saw the water there level with a 4-inch projecting flange, which would make the water 4 inches above the top of the opening; 15 or 20 minutes later he went down again, and noticed that the water then was probably about 4 inches below the top of the pipe. Another of plaintiff’s witnesses testified that at Soules & Butlers corner, where city culverts are located in the street the water was over his knees in the middle of the street and up to his knees on the sidewalk; that he walked down to this culvert in the right of way; remained there one-half hour; that the water was above the top 3 or 4 inches, maybe 6 inches; that it stood at that height 15 or 20 minutes, and then started to lower; that when he left the water in culvert was 3 inches down. Other witnesses testified to the water running into places of business and filling, or partially filling, some basements.

Testimony was offered that the top of the cast iron culvert under the right of way is about 10 inches lower than plaintiff’s property; that before water would back up from the location of the city culverts it would rise in the street there to a depth of 4 or 6 inches; that such water upon such street would have passed under natural conditions through the drain-way into the river.

Expert testimony on the part of the defendant was offered that the culvert in the right of way was planned so as to take care of a 3-inch rainfall upon the drainage areas concerned in an hour, or a continuous rainfall for any length of time of 1 inch per hour; that the 3-inch rainfall per hour in the drainage area would give a run off ‘of 123 cu. feet per second; that the culvert had a capacity of 277 cubic feet per second. No expert testimony was offered concerning the cubic feet per second capacity of the city or double concrete culverts; that if the water was 9 or 10 inches high in the Henderson store it would have to be one foot and a half above the cast iron culvert in order to back up to such height. Testimony was afforded from the records of the experimental station showing that on September 5, 19x1, there was a rainfall of 1.65 inches; on August 9, 1909, 2.75 inches; on July 27, 1914, 3.51 inches; on June 11, 1915, 1.52 inches; on June 22, 1916, 1.44 inches. Testimony was* also offered to the effect that there was an obstructing projectional wall impairing the efficiency somewhat of the double concrete culverts; that mud and silt collected therein; that the course in which such culverts ran with their right angle connections served to retard the flow of water. The jury in answer to the special questions found that the rainstorm of August 21, '1918, was an unusual and extraordinary rainstorm; that the 4-foot cast iron culvert and the double box concrete culverts maintained by the defendant were not of sufficient size and capacity to take care of the storm waters which might reasonably be expected in this locality; that likewise the city culverts across Villard street and Second avenue were not of sufficient size and capacity. A general verdict was returned for the plaintiff for $2,355-78-

Decision.

The law of the case has been stated in the cases heretofore mentioned. The principle of law therein stated, however, must be confined strictly to the particuar facts in each case involved. Again, the principle of law applicable in this case must be determined upon the record facts. This case involved the disposition of surface waters. The drainage of the area within the city of Dickinson, wherein plaintiff’s property is located, is through run-off channels artificially or naturally provided. The facts in this record do not warrant the conclusion that the drainway, or run-off channel involved is a water course. Froemke v. Parker, 41 N. D. 408, 171 N. W. 284. Most favorably considered, this run-off channel, in a state of nature, served simply the purpose of carrying off surface waters from the drainage area involved herpin as it then existed in a state of nature. The record falls far short of demonstrating the constituent elements necessary to establish a water course. Usually in an action concerning a water course, legal rights revolve about the rights of user and enjoyment. On the contrary; concerning surface waters, legal problems are concerned,, generally speak-mg, with methods of disposition and removal. This action is essentially ar action concerning the disposition and removal of surface waters, and foi damages by reason of failure to properly provide for methods of disposition and removal. It is not an action for the diversion or obstruction of a water course. In such cases the rights of the party injured ordinarily are property rights on which an action may be based for infringement thereof. This is an action for breach of a duty; for lack of care, and for negligent acts of commission or omission. Although it may be the duty of a lower landowner who obstructs or ^mbanks a natural drainway to provide for, the natural passage of water, which may be reasonably anticipated in the drainage area concerned, all under the particular facts and circumstances of a particular case, nevertheless such principle of law must be considered in connection with the duty of such landowner in providing means of disposition and removal of surface waters. The rule is not to be construed to mean that a mere runway or drainway is in such case to be considered upon the principles of law that apply to water courses. In such case, the duty that exists is the duty that is imposed upon all landowners concerning the disposition of surface waters.

In enunciating principles of law concerning this duty of the lower landowner, much legal discussion has been had in our American courts concerning the so-termed common enemy rule and the civil law rule. A review of these cases in the aggregate perhaps leads rather to confusion than clarification. The fundamental inquiry involved in the consideration of the principles to be applied is to first ascertain whether the law, under a common-law jurisprudence, considered in connection with the peculiar topographical and climatological conditions of the country, leans toward the easement theory of the civil law, or towards its rejection.

Fundamentally, the landowner, concerning surface waters, has the right to use his own land subject to the so-termed principle, “sic utere tuo ut alienum non laedas.” This is a legal right that also involves a reciprocating legal duty, for breach of which an action may be maintained. Pursuant to the common enemy theory, in its strict application, an artificial obstruction or embankment of a natural runway for the disposition of surface waters may or may not involve a liability dependent upon the application of the “sic utere tuo” principle: Under the easement theory of the civil law, the lower landowner must maintain a servitude for purposes of receiving through natural runways thereupon the natural surface waters of the paramount estate. It is time in this state, for this court to state the law applicable and adapted to the conditions existent in this agricultural state.

In several cases, this court, pursuant to the construction given the facts presented, has not applied either the so-termed enemy rule or the civil law rule. Carroll v. Rye Tp., 13 N. D. 458, 101 N. W. 894; Davenport Tp. v. Leonard Tp., 22 N. D. 152, 133 N. W. 56; Soules v. N. P., supra; Reichert v. N. P., supra; Boulger v. N. P., supra; Froemke v. Parker, supra. See McHenry County v. Brady, 37 N. D. 59, 163 N. W. 540.

Our sister state, South Dakota, has recognized the application of the civil law rule. Quinn v. Railway Co., 23 S. D. 126, 120 N. W. 884, 22 L. R. A. (N. S.) 789. Thompson v. Andrews, 39 S. D. 477, 165 N. W. 9. In North Dakota, however, there is no legislative recognition, either expressly or impliedly, of the easement theory such as the statute of South Dakota quoted in the opinion of Thompson v. Andrews. Our statute simply expressly provides that one may not prevent the natural flow of the stream or of the natural spring from which it commenced its definite course, nor pursue nor pollute the same. § 5341, C. L. 1913. This refers to water courses which are specifically defined by statute. § 5341a, C. L. 1913. It might perhaps be inferred, through statements made in the cases of Soules v. N. P. and Reichert v. N. P., that this court has rather leaned towards the easement theory, although express statements are made in such opinions that neither the enemy rule nor the easement rule was applied. It must be evident that, in an action which involves the disposition or removal of surface waters, not through or by means of a water course, one theory or other of the law must be considered, unless, under either theory, the rule of law, as applied to the facts, remains the same. Much may be stated, perhaps, in favor of the justice .of the easement theory and its application solely to agricultural territory in its ordinary agricultural development, but it must be recognized that this easement theory imposes a servitude upon lands which is classed and termed as a property right, and grants absolutely to the upper landowner the right to discharge waters as a property right Over the servient tenement. This theory grants an absolute right; the enemy rule imposes a duty and the exercise of care. In this state, where the prob-elms of drainage require increased burdens upon lower lands, where the problems of reclamation and even or irrigation require increased artificial conditions for the development of our agricultural territory, and where, furthermore, the development and growth of towns and cities in proximity to lands, either rural or urban, create artificial conditions imposing additional burdens on lower lands in addition to surface waters, the justice of the rule granting an absolute property right in the land of a servient tenement is, in fact, made negative.

The purpose of our statute requiring publicity of title, of easements, and incumbrances thereon do not voice themselves favorably to a rule of property that grants to one paramount landowner a property right in the land of another which is covert and unknown in its extent and character. In this state the fundamental conceptions of the common-law jurisprudence obtain except as constitutional, statutory, or local laws express to the contrary. The rejection of the easement theory which permits a landowner to make fruitful and productive, for purposes of his ownership, land that he would be compelled otherwise to maintain as a servitude for purposes of a drainway, subject only to the principle of law that he must not be negligent in so doihg so as to thereby occasion damage to an upper riparian owner, fully performs the office of protecting both lower and upper land proprietors. Such noneasement theory is consonant with common-law principles. In other words, the measure of a landowner’s right and reciprocating duty in the removal-or disposition of surface waters is to be guided by the principle of law that he has the right to possess, use, and enjoy his land subject to the principle, “sic utere tuo ut alienum non lsedas”; that in the application of this principle it may be an act of negligence for the lower landowner to obstruct a natural drainway through artificial obstructions so as to dam up or inhibit the natural passage of surface waters that theretofore flowed, and which he might have reasonably anticipated would continue to flow. What constitutes acts of negligence in the violation of this principle, “sic utere tuo,” has been considered in many cases, and requires no present discussion. Upon this principle of law, the decisions in Soules v. N. P. and Reichert v. N. P. can be upheld and sustained as acts of negligence upon the facts in the record of each respective case. Accordingly, in the case at bar, the gist of defendant’s liability is its negligent acts, if any, imposing artificial conditions upon conditions of nature theretofore existing in its own land, whereby negligently it occasioned damages to adjacent landowners through the impounding of surface waters.

The gist of plaintiff’s right to recover 'in this action is dependent upon the negligent action of the defendant in constructing and maintaining an insufficient cast iron culvert under its right of way and a double concrete culvert connecting therewith in the street immediately in front of its property, so as to occasion negligent impounding of waters and flooding of adjacent property, and, further, that the storm which occurred on August 21, 19x8, was one which might have been reasonably anticipated. Upon the facts in this record and as found by the jury we are of the opinion that this negligence is not established as a matter either of law or of fact. The jury found that the city culverts were of insufficient capacity. To what extent, if at all, this insufficient capacity of the city culvert operated to contribute to plaintiff’s damage cannot be ascertained except as a question of fact to be determined by the jury. See Boulger v. N. P., 41 N. D. 316, 171 N. W. 634.

The jury found that this storm, which was the fundamental cause of the damage, was an unusual and extraordinary'storm. The court charged the jury that to escape the duty to provide for a run-off as charged the burden of proof w,as upon the defendant to prove that the storm which occasioned this flood was unprecedented; that it could not have been reasonably anticipated; that unprecedented floods are floods of such unusual occurrence that they could not have been foreseen by men of ordinary experience and prudence; that ordinary floods are those the occurrence of which may be reasonably anticipated from the general experience of men residing in the region'where such floods happen. In accordance with such instructions it may be fairly implied that the finding of the jury was that this was an unprecedented storm, a flood of unusual occurrence. Soules v. N. P., 34 N. D. 33, 157 N. W. 823, L. R. A. 1917A, 501. Manifestly the contributing factors in flood damage concerning surface waters where run-off drains are concerned are volume, velocity, and intensity of rainfall. Manifestly, again, the capacity of drain channels are not determined alone by cross-sectional areas. The capacity of a run-off channel also requires the consideration of the velocity of the water therein in connection with other elements, as well as the cross-sectional area. We are satisfied upon the principles of law stated and upon the facts appearing in this record that there are questions of fact to be submitted to a iury concerning defendant’s exercise of care, in constructing the cast iron culvert under, and the embankment along, the right of way, and in constructing the double concrete culvert in the street, all in connection with its care and duty involved and to be anticipated to take care of the surface waters from the drainage area concerned in accordance with the purposes for which these artificial creations were constructed. In this connection it is to be observed, measuring the duty and liability of the defendant, that the drainage area itself has been subjected to artificial conditions in the erection of numerous buildings and in the creation of streets and avenues which add or detract from run-off conditions ,as they may have existed in a state of nature.

In our opinion the judgment should be reversed, and a new trial granted.

RobiNSON, C. J., concurs.'