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District Court of Appeal, First District, Division 1, California.

Wesley C. KEYS, Ruth C. Keys and Walnut Creek T. V. and Appliance, Inc., Plaintiffs and Respondents, v. Edward G. ROMLEY, individually and doing business as Romley Construction Company, Gus Lusebrink and Engra Lusebrink, Defendants and Appellants.

Civ. 21752.

Decided: April 13, 1965

Barnett & Wood, Walnut Creek, for appellants. John F. Ganong, Walnut Creek, for respondents.

Defendants appeal from a judgment entered against them in a trial by the court, which judgment awarded plaintiffs damages in the sum of $4,384.78 against defendant Romley and permanently enjoined defendants Romley and Lusebrink from interfering with surface waters and causing these surface waters to be discharged from their land onto plaintiffs' adjoining land in a greater quantity or in a different manner than would occur under natural conditions. The sole question presented on this appeal is whether the evidence was sufficient to support the judgment in the light of the law applicable to surface waters.1

The pertinent evidence adduced in the court below is as follows: Plaintiffs Wesley and Ruth Keys are the owners of real property in the City of Walnut Creek. In 1956 the Keys erected a radio, television, and appliance store on this property. In 1959 the Keys formed Walnut Creek T.V. and Appliance, Inc., the plaintiff corporation, of which they are the sole stockholders, and to whom they leased, in the same year, the said appliance store. Defendants Gus and Engra Lusebrink are the owners of a parcel of land abutting that of the Keys on the northeast. On December 20, 1956, the Lusebrinks leased their unimproved property to defendant Romley.

At the time the Keys erected their store in 1956, dirt was excavated and placed or piled across the rear portion of their property in a northerly-southerly direction. In 1957, Romley, who was himself a general contractor, began construction of an ice rink on his leased property and paved the area around the building with asphalt. Some grading and leveling of the land was done by Romley before beginning the actual construction work. Four downspouts were placed by Romley on the west wall of the ice rink. These downspouts were left above ground, so that the rainwater flowing through them was directed onto the paved driveway alongside the ice rink. From there, the water flowed in a southwesterly direction onto plaintiffs' property.

In 1957, about a year after the Keys erected their store, they caused additional dirt to be placed on the dirt pile aforementioned as a result of an excavation for a small parking area on the northwest corner of their property. Shortly thereafter, the Keys also built an up-ramp and a down-ramp to the rear of their building. In the spring of 1958, Romley did some additional grading and leveling, in part on the asphalt driveway on the property leased by him, and in part on the rear of the Keys' property. Mr. Keys testified that this grading raised the height of the driveway and caused a change in its slope toward his property. In the fall of 1958 the Keys caused the pile of loose dirt at the rear of their lot to be removed.

Beginning in January 1959, the Keys' property was flooded and eroded as a result of surface waters flowing onto it from defendants' adjoining land. Mr. Keys testified he attempted to alleviate the flooding problem by diverting the water away from his building, first, by constructing a ditch, and later by building a small dam with railroad ties. The flooding however continued throughout 1959, 1960, and 1961. Finally, in January 1962, by agreement of the parties, Romley erected a cement curb at a cost of $398.07 along the Romley-Keys boundary line. By agreement, this was done without prejudice to the rights of either party and without constituting an admission of any kind.

As to the passage of surface waters from defendants' property onto the land belonging to the Keys, it was stipulated at the trial that defendants' property is a tenement higher than that of the Keys. However, the record contains conflicting testimony concerning the direction in which the surface waters flowed from defendants' land before defendants improved their property. In one part of the record Mr. Keys testified that the surface waters from defendants' property originally flowed south onto Crokaerts Road; his testimony at another portion of the record is to the effect that the waters flowed east and due west onto North Main Street. Furthermore, Mr. Keys testified that he had had an opportunity to observe his real property closely prior to 1956 and that he did not see any surface waters flowing from defendants' property onto his.

It should be here noted that at the oral argument of this appeal it was conceded by counsel for plaintiffs that surface waters did not commence to flow onto plaintiffs' property until the aforementioned dirt pile was removed by plaintiffs from the rear of their lot in the fall of 1958. Such concession constitutes an admission of a legal fact and is controlling in the disposition of the case. (Fibreboard Paper Products Corp. v. East Bay Union of Machinists, 227 A.C.A. 743, 775–776, 39 Cal.Rptr. 64; Harmon v. Keough, 41 Cal.App. 773, 775, 183 P. 201; Estate of Stevens, 27 Cal.2d 108, 115, 162 P.2d 918.)

The court below found, in pertinent part, that as a result of Romley's erection of the ice rink and installation of the asphalt pavement, rain waters in great amounts and with great rapidity have been discharged, at diverse times since April 27, 1957, from Romley's property onto that of plaintiffs; and that as a result of said discharge of surface waters plaintiffs' property has been eroded and such waters have entered the building occupied by plaintiff corporation, damaging said premises and certain specified items of personal property therein. The trial court also found that prior to the erection of said building and the installation of said asphalt paving no improvements were located on the property leased by Romley and that prior to such erection and installation plaintiffs' property was not eroded or flooded.

From these findings the trial court concluded that Romley gathered surface waters on his land by artificial means and discharged said waters onto the lower lands of plaintiffs in a greater volume and in a different manner than such waters had been discharged prior to the construction of said building and the installation of the asphalt paving; that Romley increased, accelerated and otherwise modified the natural flow of surface waters from his land to the lower land of plaintiffs; and that ‘the continuance of said surface water drainage will cause a continuing future interference with the plaintiff's use and enjoyment of their property.’

With respect to the rights and liabilities of adjoining owners regarding surface waters, California has followed the rule of the civil law. This rule is stated as follows: “The owner of the upper or dominant estate has a legal and natural easement or servitude in the lower or servient estate to discharge all surface waters naturally falling or accumulating on his land, upon or over the land of the servient owner in the manner in which they would naturally flow from a higher to a lower level * * *.” (Gonella v. City of Merced, 153 Cal.App.2d 44, 51, 314 P.2d 124, 127; LeBrun v. Richards, 210 Cal. 308, 316, 291 P. 825, 72 A.L.R. 336; see 93 C.J.S. Waters § 114a(1), p. 803; 24 Minn.L.Rev., pp. 891, 893–894.) The corollary to this rule is that principle of law which is stated in the case of Heier v. Krull, 160 Cal. 441, 444, 117 P. 530, 531, as follows: ‘Every landowner must bear the burden of receiving upon his land the surface water naturally falling upon land above it and naturally flowing to it therefrom, and he has the corresponding right to have the surface water naturally falling upon his land or naturally coming upon it, flow freely therefrom upon the lower land adjoining, as it would flow under natural conditions. From these rights and burdens, the principle follows that he has a lawful right to complain of others, who, by interfering with natural conditions, cause such surface water to be discharged in greater quantity or in a different manner upon his land, than would occur under natural conditions.’ (See also Andrew Jergens Co. v. City of L. A., 103 Cal.App.2d 232, 235, 229 P.2d 475; People ex rel. Department of Public Works v. Stowell, 139 Cal.App.2d 728, 733, 294 P.2d 474.)

In the light of the foregoing principles, as applied to the facts of this case, we would be constrained to hold, in view of the well-established scope of review which governs appellate courts, that the evidence is sufficient to support the findings of the trial court. The record is such that the trial court was justified in concluding that Romley, by interfering with natural conditions, caused surface waters to be discharged upon plaintiffs' property in a greater quantity and different manner than had been discharged under natural conditions.

An exception to the civil law rule applies, however, with respect to urban land or property. (See Ogburn v. Connor, 46 Cal. 346, 351; Los Angeles C. Assn. v. City of Los Angeles, 103 Cal. 461, 467, 37 P. 375; Voight v. Southern Pac. Co., 194 Cal.App.2d Supp. 907, 15 Cal.Rptr. 59; 93 C.J.S. Waters § 114b, pp. 803, 808; 24 Minn.L.Rev., pp. 931–932.) This exception is predicated upon the basis that the common law ‘common enemy rule,’ in some form, or the ‘reasonable use rule,’ with some qualifications, applies to urban land. Under the ‘common enemy rule’ surface waters are regarded as a common enemy which every proprietor may fight as he deems best, regardless of the harm he may thereby cause to others. (93 C.J.S. § 114a(2), pp. 803, 805; 24 Minn.L.Rev., p. 898; see Chamberlin v. Ciaffoni, 373 Pa. 430, 96 A.2d 140, 143; Casanover v. Villanova Realty Co., Mo.App., 209 S.W.2d 556; United States v. Shapiro, Inc., 92 U.S.App.D.C. 91, 202 F.2d 459.) The article on Waters in 93 C.J.S. § 114b, considers this to be the applicable rule with regard to urban property, subject to the qualification that a landowner will be liable for negligence in interfering with the flow of surface waters. The rule is stated therein as follows: ‘[T]he owner of a lot in a city or town may make changes or alterations in the surface thereof essential to its enjoyment regardless of the effect on the flow of surface waters, provided he has not been negligent; * * *.’ (Pp. 808–809; citing, inter alia, Lare v. Young, 153 Pa.Super. 28, 33 A.2d 662; Mason v. Lamb, 189 Va. 348, 53 S.E.2d 7, 10.)

Under the ‘reasonable use rule,’ on the other hand, the possessor of land incurs liability only when his harmful interference with the flow of surface waters is unreasonable. Accordingly, under this rule ‘a possessor of land is not unqualifiedly privileged to deal with surface water as he pleases, nor is he absolutely prohibited from interfering with the natural flow of surface waters to the detriment of others,’ but he is ‘legally privileged to make a reasonable use of his land, even though the flow of surface waters is altered thereby and causes some harm to others.’ (24 Minn.L.Rev., p. 904.)

The rule of reasonable use turns upon the facts of each case in accordance with principles of fairness and common sense, and is ‘to be determined in each case upon a consideration of all the relevant circumstances, including such factors as the amount of harm caused, the foreseeability of the harm on the part of the possessor making the alteration in the flow, the purpose or motive with which he acted, and others.’ (24 Minn.L.Rev., p. 905.)2 This rule has been adopted in New Hampshire (see Swett v. Cutts, 50 N.H. 439; City of Franklin v. Durgee, 71 N.H. 186, 51 A. 911, 58 L.R.A. 112; Bassett v. Salisbury Mfg. Co., 43 N.H. 569), in Minnesota (see Sheehan v. Flynn, 59 Minn. 346, 61 N.W. 462, 26 L.R.A. 632; Enderson v. Kelehan, 226 Minn. 163, 32 N.W.2d 286, 289), and more recently in New Jersey (Armstrong v. Francis Corporation, 20 N.J. 320, 120 A.2d 4, 59 A.L.R.2d 413). In Enderson the rule of reasonable use is stated as follows: ‘[I]n effecting a reasonable use of his land for a legitimate purpose a landowner, acting in good faith, may drain his land of surface waters and cast them as a burden upon the land of another, although such drainage carries with it some waters which would otherwise have never gone that way but would have remained on the land until they were absorbed by the soil or evaporated in the air, if (a) There is a reasonable necessity for such drainage; (b) If reasonable care be taken to avoid unnecessary injury to the land receiving the burden; (c) If the utility or benefit accruing to the land drained reasonably outweighs the gravity of the harm resulting to the land receiving the burden; and (d) If, where practicable, it is accomplished by reasonably improving and aiding the normal and natural system of drainage according to its reasonable carrying capacity, or if, in the absence of a practicable natural drain, a reasonable and feasible artificial drainage system is adopted.’ (P. 289 of 32 N.W.2d.)

Adverting to the law of this state we find that there is authority for the application of an exception to the civil law rule with respect to urban property. In the early Supreme Court case of Ogburn v. Connor, supra, 46 Cal. 346, it was held, in a case involving damage to the servient owner of rural property, that the applicable rule in the situation before it was the civil law rule. The reviewing court, noting that the ‘common enemy rule’ was followed in some jurisdictions, made the following significant statement: ‘That rule has not, however, been generally followed in the other States, except in so far as it applies to town or city lots.’ (P. 351.)

In Los Angeles C. Assn. v. Los Angeles, supra, 103 Cal. 461, 37 P. 375, it was held that while the doctrine of the civil law had been substituted in California for the common law rule, the civil law doctrine had no application to lots held in cities and towns because changes and alterations in the surface of such lots are essential to their enjoyment. There the defendant municipal corporation had constructed an embankment in connection with street work. A culvert running through the embankment was constructed to carry off surface waters from the plaintiff's upper land. During times of extraordinary rains or floods the culvert was unable to carry off the surface waters which thus were caused to back up on the plaintiff's land. In holding that the municipal corporation was not liable for damages because the facts of the case brought it within an exception to the civil law rule, the Supreme Court stated as follows: ‘The doctrine of the civil law, in reference to a servitude in the lower tenement in favor of the upper or dominant tenement, for the flow of surface water, had no application to lots held in cities and towns, where changes and alterations in the surface were essential to the enjoyment of such lots; and this rule has been very generally adopted in this country.’ (P. 467, 37 P. p. 377; citing Ogburn v. Connor, supra, 46 Cal. 346; Corcoran v. City of Benicia, 96 Cal. 1, 30 P. 798; and Dillon on Municipal Corporations, §§ 1039–1044, pp. 1644–1651.) The reviewing court there noted that the work by the municipality was done properly and that the findings of the jury negatived the charge of negligence in the construction and maintenance of the culvert.

The exception to the civil law rule was also recognized in Voight v. Southern Pac. Co., supra, 194 Cal.App.2d Supp. 907, 15 Cal.Rptr. 59. There property owners in an urban area sought damages resulting from the backing up of surface waters due to an embankment maintained by the defendant railroad. This embankment had been constructed by the defendant prior to the urbanization of the area. In reversing a judgment for the plaintiffs, the Appellate Department of the Superior Court of Orange County, noting that the general civil law rule ‘is not without qualifications' and that the ‘general doctrine must yield to allow changed conditions which come about in the natural growth and development of the community,’ stated as follows: ‘It is clear that so far as a lower owner is concerned, in certain situations the development of the upper country may bring about an increase of the burden upon his land through having to accept the increased flow occasioned by construction of subdivisions, buildings, streets and so on, above his property.’ (P. 910, 15 Cal.Rptr. p. 61.) The reviewing court noted that while negligence had been pleaded thee was no suggestion of negligence in the stipulated facts and that ‘apparently negligence was not considered at the time of the trial or by the trial judge.’ (P. 915, 15 Cal.Rptr. p. 64.)

Although these three cases indicate that in California the civil law rule is not applicable with respect to urban property, our reading of these cases leaves us in doubt as to what rule is appropriate under such circumstances. Clearly Ogburn states no affirmative rule concerning an urban landowner's liability for the interference with surface waters. As for Los Angeles Cemetery and Voight, at first blush they appear to apply the ‘common enemy rule,’ with the negligence qualification, to such property. Thus it would seem that, as to urban property, the Corpus Juris Secundum rule is the applicable one. A closer look at the Los Angeles Cemetery case, however, reveals that the case turns upon its own particular facts as applied to the liability of a municipality for the consequent damages of authorized acts. It does not, in our opinion, hold that the exception to the civil law rule as applied to urban property is necessarily restricted to the rule announced in Corpus Juris Secundum.

The Voight case, although not specifically mentioning the ‘reasonable use rule,’ appears to gravitate towards that principle. In holding that the general civil law doctrine must yield to allow changed conditions which come about in the natural growth and development of an urban community, the reviewing court there announced that the relaxation of the strict application of the civil law rule should be receiprocal and in a proper situation yield in favor of an owner who has properly developed his property in the interests of progress whether he be the upper owner or the lower owner.

In view of the rapid growth and development of urban communities in this state, we believe that the time has come for the adoption in this state of a rule with respect to surface waters in cities and towns which attends the application of the rule of reason and will thereby balance the competing interests in the light of social progress and common wellbeing. It is a matter of common knowledge that the construction of subdivisions, streets, buildings, patios, yards, and driveways will of necessity change the course of surface waters and, in many instances, will increase the flow of such waters. Such changes will occur although such construction is pursuant to permit and in conformity with local or state building laws. While the injustice in applying the strict civil law doctrine to urban property has been long recognized in this state, the principles applicable to a just exception to such doctrine have not been clearly spelled out.

We do not believe that the ‘do as you please, provided you are not negligent’ principle is the proper one. Needless to say, an owner should not escape liability when he is negligent. However, it is conceivable that an owner may not be negligent in his interference with the natural flow of surface waters, yet his harmful interference with the flow of such waters may nevertheless be unreasonable. The Minnesota rule impresses us as one predicated on general principles of fairness and common sense since it embraces both the concept of reasonable use and reasonable care; and we accordingly adopt such rule as the basic measure, in this state, of the rights and liabilities arising out of interferences with the flow of surface waters in urban areas. We restate that rule as follows: A possessor of land is privileged to interfere with or alter the flow of surface waters so long as he uses reasonable care and does not cause unnecessary or unreasonable harm to others. This rule must remain flexible so as to allow for the consideration of each individual case according to its own special circumstances and particular facts. However, in each instance, the conditions specified in the Minnesota rule as announced by the Enderson case (32 N.W.2d 286), appear to us to be sensible and fair and we therefore adopt them as a corollary of the rule of ‘reasonable use’ as applied to urban property in this state. Accordingly, we again set them out as follows: (1) There should be a reasonable necessity for the drainage; (2) reasonable care must be taken to avoid unnecessary injury to the land receiving the burden; (3) the utility or benefit accruing to the land drained should reasonably outweigh the gravity of the harm resulting to the land receiving the burden; and (4) when practicable, the drainage should be accomplished by improving and aiding the normal and natural system of drainage according to its reasonable carrying capacity, or, in the absence of a practicable natural drain, a reasonable and feasible artificial drainage system should be provided.

In the present case the court below erroneously applied the strict civil law doctrine to urban property. Such error does not, however, require an unqualified reversal since there is nothing in the record which necessitates a new trial. There is no necessity to take further evidence as the case was fully tried. Accordingly, it is appropriate to remand the cause with directions to the trial court to make adequate findings on all issues involved, based on the evidence before it and in conformity with the views herein expressed; to draw proper conclusions of law therefrom; and to enter judgment accordingly. (Culbertson v. Cizek, 225 Cal.App.2d 451, 475, 37 Cal.Rptr. 291; 4 Cal.Jur.2d, Appeal and Error, § 670, pp. 561–562.) In making these determinations we call to the attention of the trial court that it should not only consider whether under the circumstances defendants made reasonable use of their land, but also whether, in the light of the ‘reasonable use rule,’ plaintiffs themselves made reasonable use of their own land when they caused the dirt pile on their land to be removed.

It is ordered, therefore, that the judgment be reversed and that the cause be remanded with directions to the trial court to set aside its findings of fact and conclusions of law; to reexamine and redetermine all the issues in conformity with the views herein expressed; to make and file findings of fact thereon based upon the evidence now before it; to draw proper conclusions of law therefrom; and to enter judgment accordingly. Such findings of fact, conclusions of law and judgment shall be prepared, signed, filed and entered in the manner provided by law. Defendants shall recover costs on appeal.


1.  At oral argument defendants stated that the sole issue in the case was liability, and that they were not urging the impropriety of the award of damages which they raised in their brief on appeal. Accordingly, the issue as to damages will be deemed removed from the case.

2.  Prosser, in his work on Torts, supports the ‘reasonable use principle’ and would apply it to both urban and rural property (3d ed., pp. 622–623); for a similar view see Rest., Torts, § 864, pp. 392–393. Moreover, both of these authorities treat the problem of adjoining landowners' rights and liabilities with respect to surface waters as simply an aspect of the tort law of nuisance, in which the ‘reasonable use’ concept has traditionally been applied. (See also 24 Minn.L.Rev., pp. 936–939, wherein it is suggested that this problem relating to the interference with surface waters, although generally categorized and treated in terms of ‘property law,’ is more properly a question of tort liability.)

MOLINARI, Justice.

SULLIVAN, P. J., and SIMS, J., concur.

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