Summary
In Newton Coca Cola Bottling Co. v. Murphrey, 212 Miss. 823, 55 So.2d 485 (1951), it was held that where the upper or dominant landowner violates the rule just stated it is proper to issue an injunction commanding the upper landowner to take reasonable steps to remedy the situation.
Summary of this case from Shattles v. Field, Brackett Pitts, Inc.Opinion
No. 38084.
December 17, 1951.
1. Appeal — finding of facts by the chancellor.
Where the evidence is conflicting, the findings of the chancellor will not be disturbed on appeal since he is better able to determine the truth of the matter than the appellate court.
2. Waters — higher and lower lands.
The servitude which the owner of the higher adjoining lands has upon the lower land for the discharge of surface water naturally flowing on the lower land from the dominant estate ordinarily extends only to surface water arising from natural causes, such as rain and snow and cannot be augmented and made more burdensome by the acts and industry of man.
3. Waters — collected surface water.
As a general rule a landowner cannot collect surface water into an artificial channel or volume, or precipitate it in greatly increased or unnatural quantities upon his neighbor, to the substantial injury of the latter, even though no more water is collected than would naturally have flowed upon the property in a diffused condition.
4. Water — concentrated flow upon lower land.
Where the substantial evidence showed that the defendant in grading his upper land had caused its surface water to be concentrated in an artificial manner and to be discharged upon a portion of complainant's lower lot in a more concentrated flow than would have resulted had the natural conditions been left undisturbed, complainant was entitled to a reasonable award for the damage caused and to an injunction commanding the defendant to take reasonable steps, which he could take without hardship, to remedy the situation, but in the allowance of damages only such as were the proximate result of the excessive discharge could be awarded.
Headnotes as approved by Kyle, J.
APPEAL from the chancery court of Newton County; ROY P. NOBLE, Chancellor.
A.B. Amis, Jr., for appellant.
May we in the outset state very frankly to the Court that there is no real controversy between the appellant and appellee as to the rules of law pertaining to surface waters, but that the question here presented is one of application of the announced and recognized rules of law.
We are thoroughly familiar with the rules as announced in the cases of: Drainage Commrs. v. Drainage Commrs., 130 Miss. 764, 95 So. 75; Holman v. Richardson, 115 Miss. 169, 76 So. 136; Steed v. Kimbrough, 197 Miss. 430, 19 So.2d 925; Brinkley v. Eaton, 205 Miss. 815, 39 So.2d 491; Filtrol Corp. v. Hughes, 199 Miss. 10, 23 So.2d 891, but we say that the same rule should be applied in the instant case as was applied in the case of Cauthern v. Canton, 144 Miss. 471, 110 So. 123, and the Court should follow the chancellor on the proposition that we have not increased the flow, that we have not done anything except that by grading our property the same water has been caused to flow more rapidly and to go onto the lands of the appellee at the same point as before the grading, and that we have not been guilty of any wrongful act and that we are not in anywise liable to the appellee for damages and that the injunction was improperly granted.
O.B. Triplett, Jr., for appellee.
I. Appellant unlawfully collected its surface waters and discharged them upon appellee's land (1) at a greater volume and (2) in a more concentrated flow than had been done theretofore. Steed v. Kimbrough, 197 Miss. 430, 19 So.2d 925.
(a) The concentrated flow. Filtrol Corp. v. Hughes, 199 Miss. 10, 23 So.2d 891.
(b) The increased volume.
(c) Reply to appellant's argument. Barry v. Mattocks, 156 Miss. 425, 125 So. 554.
II. The damages allowed to appellee were inadequate. Tri-State Transit Co. v. Martin, 181 Miss. 388, 179 So. 349; Restatement Torts, Sec. 461; 67 C.J., Sec. 323, p. 895.
By way of summary appellee submits that
1. Before the Coca Cola plant was constructed all of its lot drained to the north, except for the 60 foot beautification strip.
2. This beautification strip consisted of a 30 foot strip of highway property and a 30 foot strip of the Coca Cola Company lot.
3. The west half of the beautification strip drained to the west and the east half drained to the east.
4. The part of the strip that drained to the east drained in all directions as appellant's witness, John Wall, said.
5. Before the Coca Cola lot was graded appellee had no water trouble whatever.
6. Before the Coca Cola lot was graded appellee had bought his floral shop and had terraced the land to the east of the shop so that it was level but not higher than his shop property.
7. Before the Coca Cola lot was graded water had not run or seeped under appellee's floral shop and the condition of the shop had not changed since it was built, even though the sills were too small and the ventilation was not sufficient.
8. After the Coca Cola lot was graded, the appellant, by building an embankment along the east line of its lot, brought all of the surface waters which originally flowed off in other directions to one focal point south of a gum tree at the southwest corner of appellee's lot and discharged it upon appellee's lot.
9. In addition to concentrating the flow appellant discharged surface water on approximately 18,000 square feet of land which formerly did not drain upon appellee's lot.
10. After the Coca Cola lot was graded and until the hearing between three and five times as much water was discharged upon appellee's lot as had been done theretofore.
11. These waters backed up around appellee's floral shop, ran under the shop, caused the shop to decay underneath.
12. When the sills had weakened from decay, one of them broke and the floor rotted.
13. Appellee, because of these damages, suffered a loss or damage of $1,339.00, which is the amount necessary to repair the shop to its former state.
14. Appellee protested to appellant from 1948 until the hearing and offered to co-operate if appellant would alleviate the situation caused by the excessive surface waters discharged upon appellee's lot.
The foregoing findings cannot be disputed and we, therefore, respectfully submit that this cause should be affirmed on direct appeal and that, upon cross-appeal, the cause should be reversed as to property damages and judgment rendered against appellant for $1,339.00 instead of the $200.00 allowed by the chancellor.
This is an appeal by the Newton Coca Cola Bottling Company, a corporation, defendant in the Court below, from a decree of the Chancery Court of Newton County in favor of Edward Ray Murphrey, complainant in the court below, awarding damages to the complainant for the wrongful diversion of surface waters onto the land owned by the complainant, and enjoining the defendant from discharging excess surface waters from its own land upon the land of complainant.
The appellee, Edward Ray Murphrey, was the owner of a tract of land in the Town of Newton fronting southwardly on U.S. Highway No. 80 and having a width or frontage on said highway of 210 feet. The appellee acquired title to the property in 1943, and during the year 1946 the appellee constructed on the southwest corner of his lot a small building to be used as a floral shop and thereafter operated a floral shop business therein. The appellee's dwelling house was located on a part of the lot lying east of his floral shop. At the time the appellee constructed his floral shop building in 1946, the land lying immediately west of his lot and fronting on U.S. Highway No. 80 was a hilly unimproved tract of land, a small part of which lying along-side the highway right-of-way had been graded down by the State Highway Department to a level that corresponded roughly with the level of the highway as a part of a beautification project. To the north of the graded strip of land was a hill which shed its water in a diffused state in all directions except toward the south.
In January, 1948, the appellant purchased the tract of land lying immediately west of the lot on which the appellee's floral shop building was located. The lot acquired by the appellant fronted on the highway for a distance of 328 feet and extended northwardly approximately 315 feet. After purchasing its lot the appellant made arrangements to have the lot properly graded and terraced and made ready for use as a building site. The appellant cut away the hill on said lot and leveled the ground in preparation for the construction of a combination warehouse and garage and a bottling plant building. As a result of the grading of the lot the surface water falling on the lot was caused to flow southwardly and southeastwardly toward the highway and onto the land owned by the appellee; and there was abundant proof to show that after the grading of its lot by the appellant the lot on which the appellee's floral shop was located was inundated at times by the surface waters flowing southwardly and eastwardly off of appellant's lot and along the north side of the highway right-of-way onto appellee's lot, and deposits of sand were left in the yard and on the walk in front of the floral shop.
During the month of October, 1948, the appellant sent its workmen back and made substantial changes in the slopes on its own lot so as to drain the water falling on the north part of the lot back northwardly and thereby reduce the amount of surface water that would flow onto and across the appellee's lot. And sometime thereafter the appellant cut a ditch from the southwest corner of its garage building to a point near the southwest corner of the appellant's lot, so as to reduce further the flow of surface water southwardly and southeastwardly toward appellee's property.
The appellant claimed that the amount of surface water that flowed upon the appellee's lot after the above mentioned grading and terracing had been completed was no greater than it had been prior to the time when the appellant purchased its property.
The chancellor, after hearing the testimony of the witnesses, made a detailed finding of facts which was made a part of the record. The chancellor found that U.S. Highway No. 80, as it runs westwardly from Newton, runs up hill from the appellee's property for a distance of several hundred yards, and that considerable quantities of water in times of heavy rainfall come down the highway from the top of a hill that is situated well beyond the western boundary line of the bottling company's property, and that some of the water running down the highway passes along the south side of the bottling company's lot and finds its way onto Murphrey's lot. The chancellor found that the water falling on the southeast part of the bottling company's lot flowed southwardly toward the south boundary line of the bottling company's property and became commingled with the water coming down the north side of the highway right-of-way and that all of said water being thus collected along the south line of the bottling company's property entered Murphrey's lot in a concentrated flow at one point near the southwest corner of Murphrey's floral shop lot.
The chancellor accepted the estimate of the county surveyor, who testified as a witness for the defendant, that at the time of the trial the surface waters from an area of approximately 20,000 square feet of the bottling company's lot drained onto Murphrey's lot. The chancellor stated that there was no reliable testimony in the record to show the exact area in square feet of the bottling company's lot that drained onto Murphrey's lot before the grading was done. There was a decided conflict in the testimony as to the width of the strip of land along the south side of the bottling company's lot that had been graded by the State Highway Department as a part of the beautification project before the bottling company acquired title to the property; and there was also a considerable amount of uncertainty in the testimony of the witnesses as to whether all of the water falling on the beautification area was accustomed to flow eastwardly onto the Murphrey lot, or whether only a part of the water falling on the beautification area drained eastwardly and the remaining part westwardly. But the chancellor found that Murphrey suffered no damage from the water running off of the bottling company's lot until after the bottling company had graded the lot, and that as a result of the grading of the bottling company's lot the appellee had been damaged by the concentrated flow of the water falling on the southeast portion of the bottling company's lot onto Murphrey's lot at the southwest corner of Murphrey's lot.
The chancellor found that the bottling company had expended considerable sums of money in installing gutters and manholes, and ditches to take care of the surface waters running off of the bottling company's lot, and that the bottling company was not liable for punitive damages. But the chancellor found that there were some corrections that could be made by the bottling company, and that an injunction should be issued requiring the bottling company to make the necessary corrections. The chancellor did not state specifically what corrections should be made, and the nature of the corrections which he had in mind can be judged only by the terms of the decree.
The chancellor entered a decree awarding damages to the complainant in the sum of $200.00 for the injury to the complainant's property caused by the wrongful diversion of the surface waters from the defendant's lot onto the complainant's lot, and restraining and enjoining the defendant from thereafter discharging upon the land of the complainant excess surface waters from its own land. And the chancellor allowed the defendant 120 days for taking such action as might be necessary to take care of such excess surface waters so as to prevent their future flow upon the land of the complainant. From that decree the defendant has prosecuted this appeal, and the complainant has filed a cross-assignment of errors.
The appellant's attorney in his assignment of errors and in his brief attacks the chancellor's findings of facts and contends that the chancellor erred in awarding to the appellee damages in the sum of $200.00 and in rendering a decree restraining and enjoining the appellant from discharging excess surface waters from its own land upon the land of the appellee. We have made a careful study of the entire record, including the testimony of all of the witnesses who testified for either of the parties, and we find no error that would justify us in reversing or attempting to modify the decree of the chancellor. The evidence presented on the trial of the case before the chancellor was conflicting, and it is well settled by the decisions of this Court that (Hn 1) where the evidence is conflicting the findings of the chancellor will not be disturbed on appeal, since he is better able to determine the truth of the matter than the appellate court. Mississippi Chancery Practice, Griffith, Second Edition 1950, par. 674, and cases therein cited.
The principles of law relating to the right of a landowner to discharge surface water onto the lands of another are summarized in 56 Am. Jur. p. 555, as follows:
(Hn 2) "The servitude which the owner of the higher adjoining land has upon the lower land for the discharge of surface water naturally flowing on the lower land from the dominant estate ordinarily extends only to surface water arising from natural causes, such as rain and snow, and cannot be augmented or made more burdensome by the acts or industry of man, and it is the (Hn 3) generally recognized rule, both of the civil and the common law, subject to certain qualifications and exceptions hereinafter noted, that a landowner cannot collect surface water into an artificial channel or volume, or precipitate it in greatly increased or unnatural quantities upon his neighbor, to the substantial injury of the latter. This is true although no more water is collected than would naturally have flowed upon the property in a diffused condition."
In the case of Kansas City, Memphis Birmingham R.R. Co. v. Lackey, 72 Miss. 881, 16 So. 909, 48 Am. St. Rep. 589, this Court said that one may not collect surface water and discharge it injuriously upon the land of another. In the case of Illinois Central R.R. Co. v. Miller, 68 Miss. 760, 10 So. 61, this Court held that one is liable in damages who collects in artificial channels surface water falling upon his own land or that of others, and discharges it in undue and unnatural quantities upon the land of another, and that where the roadbed of a railroad diverts water, either in streams having channels and banks or mere surface water, and causes it in undue quantities to overflow the land of another the company is liable in damages therefor.
In the case of Filtrol Corporation et al. v. Hughes, 199 Miss. 10, 23 So.2d 891, 892, the Court said: "The appellants, of course, have the right to make any reasonable use of their land — to remove the bentonite therefrom — without liability to the appellee for any unavoidable injury caused him as an incident thereto, but they are without the right in so doing to cause surface water to be collected and discharged in a body on appellee's land so as to affect it differently from what it had theretofore to the appellee's injury."
And in the case of Steed v. Kimbrough et al., 197 Miss. 430, 19 So.2d 925, 926, the Court said:
"The owner of the upper land does not have the right to collect his surface waters into an artificial channel or channels and then discharge it or allow it to be discharged upon the lower land at a greater volume or in a more concentrated flow than would have resulted had the natural conditions been left undisturbed, from which it follows that when by alterations made by the upper owner in natural conditions the result would be to cast upon the lower owner the water in a greater volume or in a more concentrated flow, the upper owner by means of his own * * * land must take care of the excess, or must do so in cooperation with the lower owner."
(Hn 4) We think that there was substantial evidence to show that the appellant in grading its lot had caused the surface water from the southeast portion of its lot to be concentrated in an artificial manner along the south line of its property and to be discharged upon the land of the appellee at a point near the southwest corner of appellee's lot in a more concentrated flow than would have resulted had the natural conditions been left undisturbed. The changes made by the appellant in the second grading of the lot in October, 1948, when the slope along the north side of the lot was changed so as to cause the surface waters in that area to flow northward, and the digging of a ditch from the southwest corner of the appellant's building to a point near the southwest corner of appellant's lot eliminated the flow of surface waters in large quantities from the land of the appellant onto the land of the appellee; and from our understanding of the record, appellant can, without undue hardship, comply with the injunction requirements of the decree of the lower court. The chancellor was amply justified in awarding to the appellee the sum of $200.00 as damages for the injury suffered by the appellee prior to the filing of the bill of complaint.
The appellee in his cross-assignment of errors contends that the amount of damages awarded to him is inadequate, and that the court should have allowed him the full sum of $1,339.00, which was the amount of the estimated cost of the repairs that were needed on the floral shop building at the time of the trial. But this contention is not justified by the facts disclosed by the record. The chancellor found that the deterioration and decay in the foundation of the floral shop building, which were testified to by the appellant, were not caused by the flow of water from the appellant's lot onto the floral shop lot. The chancellor found that the deterioration and decay in the foundation of the floral shop building were due mainly to the faulty construction of the building, to the failure of the appellee to provide a sufficient number of piers to support the foundation timbers properly, and to the failure of the appellee to provide sills of sufficient size to support the weight imposed upon them after the appellee had installed a refrigerator to be used in connection with his floral shop business.
We find no reversible error in the record and the decree of the chancellor is affirmed, both on direct appeal and on cross-appeal.
Affirmed on direct appeal and on cross-appeal.