Canton v. Graniteville Fire District No. 4

Canton v. Graniteville Fire District No. 4 (99-429); 171 Vt. 551;
762 A.2d 808 

[Field 22-Aug-2000]


                                 ENTRY ORDER

                       SUPREME COURT DOCKET NO. 99-429

                              APRIL TERM, 2000



Karen Q. Canton	                       }	APPEALED FROM:
                                       }
                                       }
     v.	                               }	Washington Superior Court
                                       }	
                                       }
Graniteville Fire District No. 4       }	DOCKET NO. 48-1-96 Wncv

                                                Trial Judge:  David A. Jenkins


             In the above-entitled cause, the Clerk will enter:


       Defendant Graniteville Fire District No. 4 appeals from a jury verdict
  holding it liable for  changing the natural flow of surface water onto
  plaintiff Karen Canton's property and causing  damage in the amount of
  $27,000.  On appeal, defendant claims there was insufficient evidence for 
  the jury to conclude that defendant had changed the natural flow of water. 
  Defendant also appeals  the award of prejudgment interest, arguing that the
  jury as finder of fact in this case, not the judge,  was the correct body
  for determining whether an award of interest was due. We affirm.

       Taken in the light most favorable to plaintiff, the following are the
  facts adduced at trial.  See  McGee Constr. Co. v. Neshobe Dev., Inc., 156
  Vt. 550, 556, 594 A.2d 415, 418 (1991) (jury verdict  sustainable if,
  looking at evidence in light most favorable to verdict winner and excluding
  effect of  modifying evidence, there is any evidence fairly and reasonably
  tending to support it).  Plaintiff  began renting the property she now owns
  in 1979.  She purchased the property from her landlords in  1982.  When she
  moved into the house, in 1979, there was a sump pump in the basement. 
  Through  the years, water would seep in, but only in small quantities, and
  it would be removed by the sump  pump.  Then, in December of 1994,
  plaintiff began to experience flooding in her backyard and  eighteen to
  twenty inches of water in her basement.  

       Defendant fire district owns and operates a public water system in
  Graniteville consisting of a  series of old granite quarries, including
  Barclay and Standard Quarries, which are used as water  reservoirs, and
  which are located on a hill behind plaintiff's house.  Defendant began
  using Standard  Quarry in approximately 1958, and purchased it from Rock of
  Ages granite company in 1962.   Defendant operated the Standard Quarry
  without change in the mode of operation from the time it  began, in 1958,
  until after the start of this litigation.  

       Before the quarries existed, precipitation landing on the hill where
  the quarries are located  would flow down the hill as surface water.  The
  digging of the quarries altered the watershed.  At the  present time,
  instead of running down the hillside, the surface water and water from a
  number of  springs flows into and collects in the quarries.  Excess water
  from the Barclay Quarry flows into the  Standard Quarry, and any overflow
  from Standard Quarry is discharged through 

 

  a culvert, into a grout pile located above and approximately 500 feet from
  the land owned by  plaintiff.  Plaintiff's water problem was caused by the
  overflow from Standard Quarry, flowing  through the grout pile, and
  eventually flowing into plaintiff's backyard.

       At the end of the trial, three issues were submitted to the jury: (1)
  whether defendant changed  the natural flow of water from defendant's land
  to plaintiff's land; (2) whether any such changes  proximately caused
  damage to plaintiff's land; and (3) if so, how much.  The jury found that 
  defendant changed the natural flow of water from defendant's land to
  plaintiff's land by redirecting it,  and that the change in flow of water
  caused damage to plaintiff in the amount of $22,000 in loss of  value of
  her property and $5,000 in annoyance or discomfort.  The trial court added
  costs of $85 and  prejudgment interest of $5,500.  This appeal followed.

       Defendant first argues that there was insufficient evidence to support
  the jury's finding that it  changed the natural flow of water.  Defendant
  argues the evidence at trial showed a predecessor in  interest created the
  quarries and changed the natural flow of the surface water, and therefore 
  defendant should not be held liable.  

       An upper property owner is entitled to have surface water pass to
  lower lands in its natural  condition.  See Swanson v. Bishop Farm, Inc.,
  140 Vt. 606, 610, 443 A.2d 464, 465 (1982)  (overruled on other grounds by
  Soucy v. Soucy Motors, Inc., 143 Vt. 615, 471 A.2d 224 (1983)).   However,
  an upper property owner cannot artificially change the manner of flow by
  discharging it  onto the lower land at a different place from its natural
  discharge.  See id., 443 A.2d  at 466.  Such  interference with the flow of
  surface water is a form of conduct that may result in a trespass or 
  nuisance.  See Restatement (2d) of Torts, § 821D cmt. e (1977) (flooding of
  plaintiff's land is  trespass, and, if it is repeated or of long duration,
  it is also a nuisance); S. Kinyon & R. McClure,  Interferences with Surface
  Waters, 24 Minn. L. Rev. 891, 936 (1940) (arguing that rules relative to 
  surface waters be classified under tort law as trespass or nuisance, rather
  than property law).  

       Liability for trespass arises when one intentionally enters or causes
  a thing to enter the land of  another.  See Restatement (Second) of Torts,
  §158(a).  Thus, one who causes water to enter the land  of another is
  liable for trespass.  See S. L. Garand Co. v. Everlasting Memorial Works,
  Inc., 128 Vt.  359, 360-62, 264 A.2d 776, 777-78 (1970) (treating diversion
  of water onto another's land as act of  trespass).  Because defendant
  repeatedly causes water to enter plaintiff's land, it is liable for 
  continuing trespass.  See id. at 362, 264 A.2d  at 778 (trespass is
  continuing if repeated acts are done  or threatened). 

       Even assuming water flow is an indirect invasion of property, and
  therefore not a trespass,  interference with surface water may constitute a
  nuisance.  See Restatement (Second) of Torts,  § 833.  An upper property
  owner creates a nuisance when he or she causes water to flow onto lower 
  lands in a manner or place different from its natural state, harming the
  lower property owner's  interest in the use and enjoyment of that land. 
  See id., § 821D.  Thus, every time surface water  collects in Standard
  Quarry and is discharged onto plaintiff's land through the grout pile,
  defendant is  invading plaintiff's interest in the use and enjoyment of her
  property and creating a nuisance.  

 

       Regardless whether we treat the diversion of surface water as a
  trespass or nuisance, it was not  error for the jury to find defendant
  liable for plaintiff's damages.  McGee Constr., 156 Vt. at 556, 594 A.2d 
  at 418 (jury verdict sustainable if there is any evidence fairly and
  reasonably tending to support  it).  The fact that the culvert and granite
  pile was created by defendant's predecessor is irrelevant.   The tort is
  committed when defendant releases water through the culvert, which is not
  the natural  flow of the surface water.

       Defendant claims that the spring water that flows into and collects in
  the quarries is not surface  water.  However, this argument was raised for
  the first time in its reply brief, and will not be  considered on appeal. 
  See State v. Plante, 164 Vt. 350, 355, 668 A.2d 674, 677 (1995) (issues
  raised  for first time on appeal will not be addressed).  Furthermore, even
  if we were to hold that spring  water is not surface water, the fact still
  remains that defendant redirected the rest of the surface water  flowing
  down the hillside, through its quarries, onto plaintiff's property. 
  Therefore, defendant is  liable to plaintiff whether or not spring water is
  included in the definition of surface water.

       Defendant also argues that there was no evidence explaining why
  plaintiff suddenly  experienced a water problem after fifteen years, even
  though defendant had operated its water system  in the same manner over the
  period in question.  In other words, defendant argues it could not be the 
  cause of plaintiff's water problem.  However, plaintiff must not prove
  defendant's actions were the  sole cause of her water problem; it is
  sufficient that she prove it is one of the causes.  See Nicholson  v.
  Doyle, 125 Vt. 538, 539-40, 218 A.2d 689, 690 (1966) (plaintiffs must show
  actions of defendants  caused or formed part of cause of cellar flooding). 
  Plaintiff's expert testified that the water flowing  out of Standard Quarry
  raised the water table, caused dampness in plaintiff's basement, and
  flooded  her backyard.  The jury's finding that defendant caused
  plaintiff's damages was supported.  See  Retrovest Assocs. v. Bryant, 153
  Vt. 493, 497, 573 A.2d 281, 283 (1990) (court will affirm jury  verdict
  unless clearly erroneous).

       Defendant next argues that the jury as finder of fact in this case,
  not the judge, was the correct  body for determining whether an award of
  interest was due.  V.R.C.P. 54 (amount of judgment shall  include all
  interest accrued on amount of monetary relief due up to and including date
  of entry).   Here, the judge instructed the jury to disregard interest,
  explaining to them that he would address that  issue.  Defendant did not
  object to that jury instruction, nor did defendant object when the court 
  made its verbal award of interest.  Because this issue was not preserved
  for appeal, we do not address  it.  See V.R.C.P. 51(b) (no error in giving
  instructions to jury unless party objects distinctly prior to  jury
  consideration of issue); State v. Sanders, 168 Vt. 60, 63, 716 A.2d 11, 14
  (1998) (issues not  objected to at trail are waived for purposes of
  appellate review) Carmichael v. Adirondack Bottled  Gas Corp., 161 Vt. 200,
  211, 635 A.2d 1211, 1218 (1993) (because objections was not made to jury 
  instruction, alleged error was waived).

 


                                       BY THE COURT:


                                       _______________________________________
                                       Jeffrey L. Amestoy, Chief Justice

                                       _______________________________________
                                       John A. Dooley, Associate Justice

                                       _______________________________________
                                       James L. Morse, Associate Justice

                                       _______________________________________
                                       Denise R. Johnson, Associate Justice

                                       _______________________________________
                                       Marilyn S. Skoglund, Associate Justice