Myotte v. Village of Mayfield

*98 Stillman, J. Plaintiff-appellee, Dolores Myotte, owns a single-family dwelling located on two acres of land at 596 SOM Center Road, Mayfield Village, Ohio. Mrs. My-otte purchased her home in 1959, and has lived there continuously until the present time. Mrs. Myotte’s property is situated on the west side of SOM Center Road at the northeast end of a watershed which drains from a southwesterly to a northeasterly direction. At the northeast corner of the watershed, the watercourse therein runs through the rear portion of Dickson’s property, east along the property lines of the Dickson and Myotte properties, north through the Myotte property, then through the Palermo property, and finally, it turns and flows in an easterly direction underneath SOM Center Road.- The location of the watercourse on the Dickson'' property was changed in the 1940’s by the builder of the house, who moved the ditch to the west so that it would be farther away from the house. Similarly, when the Myotte house was built, the builder changed the location of the watercourse so that it would-run parallel with SOM Center Road. The Dickson, Myotte and Palermo properties' did experience-flooding during very heavy rains even prior to 1969.' However, in 1969, an industrial park known as Mount Vernon Industrial Park was developed just south - of the Myotte property, and thereafter, all three properties regularly suffered from substantial flooding whenever it rained at all. Development of this park involved the building of a road named Beta Drive which continued through the park and was subsequently accepted and dedicated'by May-field Village. In addition to the roadway, formerly wooded and grassy areas were supplanted by buildings and parking lots, thereby reducing the land space which would ordinarily serve to absorb surface water. The industrial park occupies a large part of the watershed described previously, but in the course of its development, a portion of the natural watercourse was filled over and replaced by a system of storm sewers originally 48 inches wide and later ex panded with an additional 42 inch pipe. The water in this sewer system reenters thé préexisting watercourse at the *99 northerly border of the industrial park property, and then the flow continues in a northerly and northeasterly direction through two lots owned by a Mr. Eusso, through the Dickson property and then along the front of the Myotte and Palermo properties, parallel with SOM Center Eoad. More specifically, the watercourse enters Mrs. Myotte’s property at the southwest corner thereof, flows easterly along the southern boundary, and then turns north and flows parallel to SOM Center Eoad. The ditch or watercourse on the Myotte property is four to six feet wide and three to four feet deep. At the point at which the watercourse flows in the front of Mrs. Myotte’s property, it is directed under a concrete bridge through a 27 inch culvert, pipe. The village of Mayfield advised Mrs. Myotte in 1970 that the 27 inch pipe blocked the natural flow of water and that it should be replaced by a larger pipe in order to prevent flooding. Mrs. Myotte did not reconstruct the bridge and pipe to the village’s specifications, but rather, instituted the instant action against the village. On August 23,1974, Mrs. Myotte filed a complaint in which she prayed alternatively either for the court to permanently enjoin the village’s building commissioner from issuing building permits for further construction in the industrial park and for damages for past and future trespass and appropriation of her property, or, for an adequate storm sewer system and for compensatory damages. On November 13, 1974, the' village of Mayfield filed its answer to the complaint, which denied liability for the flooding, claimed that the. village took positive steps to relieve the flooding, and alleged that Mrs. Myotte’s 27 inch culvert was the true cause of the flooding in the first place. Trial was had on April 9,-1976. At the close of plaintiff’s evidence, and again at the close of all of the evidence, defendant village moved for judgment in its favor, but the motion was twice denied. The trial court found that the village of Mayfield was liable for- the damage caused to Mrs. Myotte’s bridge, culvert, driveway and basement.by the increased flow and volume of water through the watercourse on the Myotte property. The court; below *100 awarded Mrs. Myotte $8,000 damages and enjoined the village of Mayfield from issuing any more building permits for the industrial park complex. The village of Mayfield filed its notice of appeal on May 7, 1976, and the same was amended pursuant to a motion on August 19, 1977. In its appeal, the village assigned three errors: 11 Assignment of Error I. “The trial court erred in overruling defendant-appellant’s Motion for Judgment at the close of plaintiff-appel-lee’s case. “Assignment of Error II. “The trial court erred in overruling defendant-appellant’s Motion for Judgment at the close of all evidence. “Assignment of Error III. “The trial court erred in granting judgment for plaintiff-appellee in any amount and in enjoining the Village of Mayfield from issuance of further building permits.” All three assignments of error basically state the same objection, that is, that the decision of the trial court was erroneous and clearly contrary to law. We determine that the rule of reasonable use applies in this case and that Mrs. Myotte is entitled to judgment as a matter of law. Traditionally, the lower riparian owner is obliged by law to accept the surface water flowing from an upper riparian property. (See dicta in Johnston v. Miller [1968], 15 Ohio App. 2d 233, 237; Ratcliffe v. Indian Hill Acres, Inc. [1952], 93 Ohio App. 231, 237.) American surface water drainage law can be reduced to four distinct categories: the common enemy rule, the civil law rule, a reasonable use modification of the civil law rule, and a reasonable use rule. Fry, From Good Husbandry to Reasonable Use: Illinois Surface Water Drainage Law Evolves in Subdivision Case, 52 Chi.-Kent L. Rev. 169, 170 (1975-1976). An additional category to those already mentioned is the capacity of the stream rule, which is another variation of the civil law rule. (See Annotation, 28 A. L. R. 1262, 1267-1270.) Under the original common enemy doctrine, a possessor of land' has an unrestricted legal privilege to deal with the *101 surface water on his land as he chooses, without regard to the harm which he may cause to the property of another. Over the years, the common enemy rule has been modified so that a landowner may not maliciously or negligently obstruct the flow of surface water to the detriment of a neighboring landowner. Maloney and Plager, Diffused Surface water: Scourge or Bounty? 8 Nat. Resources J. 72, 79 (1968). The civil law or natural flow doctrine allows a landowner to improve his land despite consequent injury to another landowner so long as the natural watercourse is not altered in any way by the offending landowner. Oakwood Club v. South Euclid (1960), 83 Ohio Law Abs. 153; McCoy v. Rankin (1941), 35 Ohio Law Abs. 621. Because the civil law rule so severely restricted the upper riparian owner’s opportunity to develop his land, some states 1 have adopted a reasonable use modification to the civil laiv rule. Munn v. Horvitz Co. (1964), 175 Ohio St. 521, certiorari denied, 379 U. S. 820; Johnson v. Goodview Homes —1, Inc. (1960), 82 Ohio Law Abs. 526; Lunsford v. Stewart (1953), 95 Ohio App. 383; Ratcliffe v. Indian Hill Acres, Inc., supra; Mason v. Commissioners of Fulton County (1909), 80 Ohio St. 151. When applying this modification to the civil law rule, courts consider the potential gravity of harm which threatens both the upper and lower riparian owners involved in an effort to determine whether an interference or change of a natural watercourse was reasonable under the circumstances. The reasonable use rule is essentially the same as the reasonable use modification of the civil law rule since the latter holds that an upper riparian owner may not interfere with the natural flow of water unless he acts reasonably, and the former states that surface water may or may not be interfered with, depending upon the reasonableness of the conduct. Fry, From Good Husbandry to Reasonable Use, supra, at 173. (See also, Bridges, The Applica *102 tion of Surface Water Rules in Urban Areas, 42 Mo. L. Rev. 76 [1977].) Finally, the capacity of the stream theory suggests that an upper proprietor may never increase the flow of water within a natural watercourse to the point where the flow would exceed the natural capacity of that watercourse. McBride v. City of Akron (1894), 12 C. C. 610; Neff v. Sullivan (1886), 17 Ohio L. J. 168. Although this is a viable principle on which to base a decision in this case, we have chosen the broader, more flexible rule of reasonableness. The purpose of the rule of reasonableness is to provide a current and adaptable standard by which surface water disputes, particularly in urban areas, may be equitably resolved. "Where a lower riparian landowner stands to be seriously damaged by the actions of an upper riparian landowner, who, at a relatively small expense, is in a position to avoid the harm threatened to the servient owner’s estate, it is only reasonable and fair that the offending landowner bear the burden of his own actions. The New Jersey Supreme Court held in Armstrong v. Francis Corporation (1956), 20 N. J. 320, 330, a case involving an individual lowland owner against a building contractor for relief from surface and percolating waters which were collected and discharged in a natural watercourse bordering on the lowland owner’s property, that: “[W]hile today’s mass home building projects, of which the Francis development is typical, are assuredly in the social good, no reason suggests itself why, in justice, the economic costs incident to the expulsion of surface waters in the transformation of the rural or semi-rural areas of our State into urban or suburban communities should be borne in every case by adjoining landowners rather than by those who engage in such projects for profit. Social progress and the common well-being are in actuality better served by a just and right balancing of the competing interests according to the general principles of fairness and common sense which attend the application of the rule of reason.” (Emphasis added.) In a recent Ohio case, Masley v. Lorain (1976), *103 48 Ohio St. 2d 334, the city of Lorain was held responsible for the flooding of plaintiffs’ land caused by the city’s development of a creek (which served plaintiffs’ land) as part of its storm sewer system. In that ease, the Court of Appeals for Lorain County found that the city had effectively appropriated the plaintiffs’ property by constructing a storm sewer system which channelled a larger volume of water into the creek than the creek could reasonably be expected to handle without flooding. The court remarked at page 340: “It would be anomalous indeed to hold that a municipality may plan and build a storm sewer system to collect surface water and channel it into a natural watercourse, with knoweldge that the watercourse is insufficient to accommodate the flow during rains which can be reasonably anticipated, and thereby cause continual flooding of lower land, without compensation to the owner, despite the municipality’s liability for causing surface water to flood the property directly, and its liability for failure to use reasonable care in its construction of a hydraulic system in order to prevent injury to others in times of flooding. This anomaly is particularly apparent where, as here, a different design would have averted the flooding.” In tho instant ease, the village of Mayfield had repeatedly been made aware of the recurring flooding of the Myotte property, and it even took limited measures towards improving the flood situation by approving the additional 42 inch pipes for the storm sewer system. However, the village failed to implement a real solution to the flooding problem, such as widening the existing watercourse on the Myotte property so that the increased flow of water from the industrial park would be accommodated. Such a solution would represent a relatively small cost to the village, especially in light of the tax income which it receives from the industrial park, and in contrast to the serious harm caused to the market value of Mrs. Myotte’s land if the flooding persists. 2 The village^ behavior in *104 this case is analogous to the contractor’s behavior in the Armstrong case, supra, and it is unmistakably unreasonable. The modified judgment of the trial court is affirmed. Judgment affirmed. Day, C. J., concurs. Patton, J., dissents. Footnotes [1] See generally Note, Drainage of Surface Waters Under the Civil Law Rule As Applied in Maryland, 11 Md. L. Rev. 58 (1950). [2] The appraised value of the Myotte property was determined at. trial to be $58,000 absent flooding, and only $13,300 where flooding existed.