Opinion
C.A. No. 15424
Date Submitted: January 4, 2001
Date Decided: March 30, 2001
Jeffrey M. Weiner, Esquire
Daniel R. Losco, Esquire, Losco Marconi, P.A.
Dear Counsel:
Pending is the defendants' motion for summary judgment based on the undisputed facts narrated below. For the following reasons the motion will be granted.
. . .
The plaintiffs' home was constructed, long before the plaintiffs acquired it, as a "spring house," the basement of which was dug so that it intercepts and collects an underground flow of water. The water enters the basement through rocks in one foundation wall, collects in a pool on the basement floor, and then exits through a hole in the opposite foundation wall. In August 1996, after the plaintiffs had purchased the house and after many years of uneventful water flow activity, the effluent backed up and began flooding the plaintiffs' basement.
The plaintiffs hired experts to investigate the problem. Those experts determined that the water had been flowing from the plaintiffs' basement through an underground terra cotta pipe, across and under the plaintiffs' yard, and then across and under the defendants' lot and home. The plaintiffs and the defendants are adjoining property owners, and the pipe, which was originally constructed to drain the spring house, had become blocked at a point on the defendants' lot. The blockage, it appears, caused the backup of effluent that eventually flooded the plaintiffs' basement. Whether or not the underground terra cotta pipe continues past the blockage, and (if it does) where that pipe leads, is not disclosed by the record. Moreover, no chart or record marks the course of the waterfiow beyond the pipe. The plaintiffs assert that when they purchased their home they were told that the underground water eventually flows above-ground into nearby Perkins Run. No evidence was adduced to show that that was or is, in fact, the case.
The plaintiffs do not have and never had an easement to maintain the underground pipe across the defendants' property. Both the plaintiffs' and the defendants' lots were originally one single lot held by a common owner who later subdivided the property into two separate parcels. At the time the defendants purchased their parcel, the existence of the terra cotta pipe was not apparent to them, nor was the pipe's existence discovered at any time before the plaintiffs' basement began to flood.
Since the flooding began the plaintiffs have sought to remedy the problem, but without success. The plaintiffs first asked the defendants for permission to enter their property to correct the blockage, but the defendants refused. The plaintiffs then attempted other solutions, including pumping the water from their basement onto the surface of their property with a sump pump. That solution proved unworkable, because the water either percolated back into the ground or ran into a storm sewer.
Dissatisfied with the results of those measures, the plaintiffs again asked the defendants for permission to clear the blockage under their land, this time offering to incur the expense of that effort. The defendants agreed, if the plaintiffs would agree to bear all future responsibility for the pipe's maintenance. That condition was unacceptable to the plaintiffs, and this law suit followed.
In this action, the plaintiffs seek (1) an injunction allowing them to enter the defendants' property to remove the blockage from the pipe, and (2) compensatory damages resulting from the defendants' initial refusal to allow them entrance onto their property to remove the blockage which (the plaintiffs claim) resulted in property damage. If granted, the requested injunction would be the functional equivalent of an easement to maintain the plaintiffs' drainage pipe onto (or across) the defendants' property. The plaintiffs, however, have failed to establish the existence of any such easement. No express easement was retained when the property was subdivided by the common owner; no apparent easement existed when the defendants bought their property, and no showing has been made of any open use of the defendants' property that might lead to the recognition of a prescriptive easement.
The plaintiffs concede that no easement exists, for which reason they rely upon two other theories to support their claim for relief. First, the plaintiffs contend that under the doctrine of ripanan rights they are entitled to enter the defendants' land to cure the blockage. The plaintiffs claim that they are riparian owners of the subsurface water that moves across and under their property, and, as such, they are entitled to enter the defendants' downstream property and clear the current blockage of their "stream." The plaintiffs' second theory of relief is based on the reasonable use doctrine. Under that doctrine, when one landowner changes the use of his property so as to alter the flow of water onto an adjoining landowner's property, "the utility of the owner's [changed] use of his land [is] weighed against the gravity of the harm which results from altering the flow of surface waters. . . .
Weldin Farms. Inc. v. Glassman, Del. Supr., 414 A.2d 500, 502 (1980).
I conclude, for the reasons discussed below, that neither claim has merit.
A. The Applicable Standard
On a motion for summary judgment, the Court will view all the evidence in the light most favorable to the non-moving party and determine whether any material issues of fact are presented. If there are no disputed issues of material fact, the Court must then determine whether the moving party is entitled to judgment as a matter of law. In deciding the motion, the Court will assume the truth of uncontroverted facts that are shown by the record.
See Cincinnati Bell Cellular Systems Co. v. Ameritech Mobile Phone Service of Cincinnati. Inc., Del. Ch., C.A. No. 13389, Chandler, V.C., Mem.Op. at 3-4 (Sept. 3, 1996) (requiring that no material issues of fact exist);Oliver B. Cannon Sons v. Dorr-Oliver, Inc. Del. Super., 312 A.2d 322 (1973) (requiring the court to look at the evidence in a light favoring the non-moving party).
See Bader v. Sharp, Del. Ch., 110 A.2d 300 (1954), affd Del. Supr., 125 A.2d 499(1955).
Cincinnati Bell, at 4 (citing Tanzer v. Int'l Gen. Indus.. Inc., Del. Ch., 402 A.2d 382 (1979)).
B. The Plaintiffs Are Not Riparian Owners
The plaintiffs' claims both rest on the premise that the plaintiffs are owners of riparian land that adjoins the property of their neighbors, the defendants. "[A] riparian owner is one who owns land on the bank of a river, or one who is the owner of land along, bordering upon, bounded by, fronting upon, or adjacent or contiguous to or in contact with a river." Here, however, instead of bordering on a body of surface water, the parties' properties are located above an underground waterfiow that the plaintiffs characterize as an "underground stream." An underground stream is not considered a surface river in the traditional sense, although it has been treated as such for purposes of allocating riparian rights in cases where the stream "flow[s] in a well-defined and well-known channel, the course of which can be distinctly traced[.]" This "underground river" doctrine is limited, however, to streams that, like surface streams, flow naturally within a defined bed that is apparent from an inspection of the surface. Although it need not be visible from the surface, the defined water channel must be ascertainable from "reasonable inference from existing and observed facts in the natural, or rather, the pre-existing condition of the surface of the ground." Where the subterranean stream flows beneath separately-owned plots of land and is "not only unknown, but incapable of being ascertained by reasonable diligence," the owners of those plots are not riparian owners.
State v. Penna. Railroad Co., Del. Super., 228 A.2d 587, 594 (1967).
See The Law of Waters and Water Rights, Subterranean Streams § 944, (Henry Philip Farnham, M.L.) (1904).
See. e.g., Findley v. Teeter Stone. Inc., Md. Supr., 248 A.2d 106, 109 (1968) (holding that, in order to be treated as an "underground stream," groundwater must flow in a defined and fixed channel ascertainable from the surface without excavation."); Walla v. Oak Creek Township in Saunders County, 92 N.W.2d 542, 545 (1958) (holding that underground streams which "flow in a well-defined channel, or feed into and support a surface stream" may be treated like surface waters for the purposes of allocating riparian rights). See also The Law of Waters and Water Rights, Subterranean Streams § 944,(Henry Philip Farnham, M.L.) (1904).
The Law of Waters and Water Rights, Subterranean Streams § 944, (Henry Philip Farnham, M.L.) (1904).
Id.
The plaintiffs assert that because the water that is causing their basement to flood is an "underground stream," they are riparian owners, and as such have the right to enter the defendants' land to clear the blockage. But the plaintiffs are not riparian owners, because the water flowing under the parties' respective properties is not an "underground stream." Rather, the record shows that the ground water originates up-slope, enters the plaintiffs' basement below ground level, and then exits through a pipe that runs under the plaintiffs' land, then under the defendants' land, and then, perhaps, into Perkins' Run. There is no evidence of the precise course of flow of the ground water, or evidence that the course of flow exists within a "well-defined and well-known" channel.
Because the plaintiffs have not established that their land borders on an underground stream, they do not possess, and cannot assert, the rights of a riparian owner. And, because the existence of the water flowing beneath the parties' properties is not apparent from the surface, the plaintiffs cannot claim an easement that legally they must have to enter their neighbors' land and clear the blocked pipe.
C. The Reasonable Use Doctrine is Inapplicable
Another theory discussed by the parties (but not straightforwardly argued by the plaintiffs as a basis for relief) is the reasonable use doctrine. As articulated by the plaintiffs, that doctrine requires that any change in use of property that adversely affects the water flow onto a neighboring property must be reasonable. The theory, however, is self-evidently inapplicable in this case. Here, the plaintiffs claim to have a right to enter and maintain an artificial drainage system on their neighbor's property. But, the plaintiffs ignore the fact that no "change" has been made to the use of either property. The right claimed by the plaintiffs to enter the defendants' land would require an easement the justification for which the plaintiffs are unable to articulate. Accordingly, this Court finds that the record fails to support the plaintiffs' claim(s) for relief.
See Plaintiffs' Sur-Reply Brief in Opposition to Defendants' Motion for Summary Judgment and In Support of Plaintiffs' Crossmotion for Summary Judgment, citing Weldin Farms. Inc. v. Glassman, Del. Supr., 414 A.2d 500 (1980).
The plaintiffs cite Chandler v. Jahnigen, Del. Ch., C.A. No. 1490S, Berger, V.C. (Feb. 1, 1994), for the proposition that the law does not draw any distinction between natural and manmade changes in water flow. That case, however, is inapposite because, unlike the case at bar, the disputed water channel in Chandler was "well-known and welldefined." Here, the natural cause of the pipe's blockage is immaterial to the applicability of the reasonable use doctrine, because the very existence of the disputed waterway was not apparent. Further, the "natural" interference with drainage in Chandler was the result of an affirmative manmade change in the use of the defendants' land; here, no such affirmative change has been made.
See E. J. Hollingsworth Co. v. Jardel Co.. Inc., 178 A.2d 307, 308 (1962).
The defendants' motion for summary judgment is granted. IT IS SO ORDERED.