It passed all inspections

you can't stop nature

within 5 days

189 N.Y.S.2d 82 19 Misc.2d 167Clarence W. NOLAN and Ruth B. Nolan, Plaintiffs,
v.
Joseph J. CARR and Town of Fleming, Defendants.

Supreme Court, Cayuga County
July 28, 1959.
In this action, the plaintiffs seek to restrain the Town of Fleming from maintaining a drainage system along a public highway in a realty subdivision known as Forest Hills and discharging the water therefrom upon the premises owned by the plaintiffs.
...
The gravamen of plaintiffs' action is that the maintenance of the roadside ditches and culvert has produced on their land a flooded condition and a deposit of soil and dirt carried by the flood waters. Erosion of plaintiffs' land arising from the concentration of water through the culvert was neither pleaded nor proven.

From the evidence, the court determines that the plaintiffs' farm is at the bottom of a natural depression, which includes the Forest Hills Subdivision. The natural contour of the land lying north, west and east of plaintiffs' farm is such that surface waters thereon would tend to flow onto plaintiffs' land and be collected in a temporary pond or pool at the low point. This area is drained by field tile southerly to the Mobbs Road ditch. From the evidence, it appears that the land purchased by Carr lies within the natural watershed described above and that the construction of the highway with its accompanying ditches did not increase the size of that watershed. There is evidence from disinterested witnesses that a part of plaintiffs' land was flooded periodically before the construction of the road. Neighborhood children used a pond for winter ice skating and, on occasion, ducks were seen to frequent a pond on plaintiffs' farm. The elevation of the West Lake Road is such that the Town of Fleming would have no other means of disposing of surface waters except by the installation of a pump or excavation of ditches to impractical depths.

The evidence fails to show the existence of any natural watercourse with well defined boundaries. However, the size of the watershed which drains through plaintiffs' farm has not been increased. The effect of the highway with its ditches and culvert has been only to collect and discharge in mass that water which otherwise would flow onto plaintiffs' land in a diffused state.

Problems involving interference with the flow of surface waters have taxed the judicial wisdom of the courts in many states. It would appear that several divergent views exist, the first, the so-called 'common enemy doctrine' whereby each owner may dispose of surface water without liability to his neighbors and the second, the so-called 'civil law rule', that adjoining landowners are entitled to have the normal course of natural drainage maintained with the lower owner bound to accept and dispose of water which comes naturally to his land but likewise entitled not to have the normal drainage artifically changed or increased. (Annotation, 59 A.L.R.2d 422; 24 Minn.Law Review 891). It is doubtful whether either rule exists today in the extreme form stated. The courts of New York have had requent occasion to pass upon the subject of surface waters. The accepted rule was stated in Kossoff v. Rathgeb-Walsh, 3 N.Y.2d 583, 588, 170 N.Y.S.2d 789, 793, as follows: 'Under the common law adopted in this State, either proprietor can improve his land, according to his own desire in any manner to which the land is suited, without being liable to the abutting owner for change in the flowage of the surface water provided that he does not resort to drains, pipes or ditches.'

Collection of surface water by a municipality into a single channel in an increased volume so as to cause damage to an adjacent owner has been held actionable. Noonan v. City of Albany, 79 N.Y. 470; Mennito v. Town of Wayland, Sup., 56 N.Y.S.2d 654; Gibson v. State, 187 Misc. 931, 64 N.Y.S.2d 632; Kerhonkson Lodge, Inc. v. State, 4 A.D.2d 575, 168 N.Y.S.2d 56. The rule appears to be accurately stated in Farnham, Water and Water Rights, at page 966 as follows: 'Even courts which hold that the municipality is not liable for changing the flow of surface water so as to cast it onto adjoining property by changing the grade of its streets hold the municipality liable where, by the street improvements, water is collected in one place, and then discharged in a body onto adjoining land. If, for any reason, the water is gathered in a body, it must be taken care of and conducted safely to an outlet in such a way as to do no injury to private property.' And at page 965: 'A municipal corporation cannot collect surface water and discharge it in a mass onto the land 'of a private owner".
However, it is not the mere discharge in a body at a single point which creates liability. The plaintiffs must prove that the construction of the roads and ditches so increased the flow of surface water as to result in damages. Kerhonkson Lodge, Inc. v. State, 4 A.D.2d 575, 168 N.Y.S.2d 56; Rockwell v. State, 15 Misc.2d 1974, 182 N.Y.S.2d 422. A distinction was made in Melin v. Richman, 96 Conn. 686, 115 A. 426, 428, wherein the court said: 'The purport of this instruction is that when a landowner artifically collects water upon his own land, in order to avoid liability, he must cause it to be so diffused that it will pass from his lands upon that of his neighbor, as it would originally have done if not so collected.

This statement of law is not accurate in detail, because the diffusion required of artifically collected surface water need only to be to such an extent as to prevent this water from passing in an increased volume upon the neighbor's land to his substantial injury.'

In this case, the court fails to find that the continued maintenance of the ditches and sluice will cause any increase in the total amount of surface water that would otherwise flow upon plaintiffs' property. A ten inch culvert under the highway terminates upon lands owned by Carr twelve feet northerly of the plaintiffs' lands giving some opportunity for the diffusion of the water discharged through the pipe. Plaintiffs' neither pled nor proved that erosion of their land resulted. Evidence of loss of crops was unsatisfactory since it appeared that the entire crop had been poor that year. Under these circumstances, even though a technical legal right has been violated, should the court enjoin the continuance of the ditches and culvert?

In McCann v. Chasm Power Co., 211 N.Y. 301, 105 N.E. 416, the defendant had constructed a dam which raised water upon land owned by the defendant. The Court of Appeals recognized that a continuing trespass had been committed and that the plaintiff had the right to resort to equity for an injunction to prevent a multiplicity of suits yet the court denied the injunction on the grounds that it would do the plaintiff but comparatively little good and would produce a great public and private mischief. The decision was cited and followed in Howland v. Union Bag & Paper Corp., 156 Misc. 507, 282 N.Y.S. 357. That principle is applicable here. To require the defendant to eliminate its ditches and culvert would result in little benefit to the plaintiffs, but in great detriment to the defendant and to the public who use the highway. During periods of melting snow or cloudbursts the water would then accumulate on the north side of the highway with no other outlet than over the road and onto plaintiffs' land in about the same volume as now flows true the culvert. An Equity Court is not bound to decree an injunction where it would produce such great public mischief.

The Court recognizes that the plaintiffs' legal rights have been invaded but denies injunctive relief because the plaintiffs have not suffered nor been threatened with substantial injury and because the defendant and the public would be greatly harmed thereby. The plaintiffs may bring such other action as they may be advised on account of any injury to their property hereafter occurring.
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So my daughter has been in this house for just one year. She bought it from a house flipper. It passed all inspections. It's located on the top of the street which happens to be the highest point for both the front and rear of the house. During her first day of moving in the neighbor behind her comes knocking at the door complaining that her sump pump and drainage flows into her back yard. Note this situation has been like this for the past 20 to 25 years.

Could the water be channeled away, perhaps using a surface French drain (gravel filled ditch) near the property line so it does not run right at the neighbor's house?