STATE of Delaware ex rel. J. Gordon SMITH et al., Plaintiffs Below, Appellants,
0.24148, 0.23831 and 0.12277 ACRES OF LAND, Harvey C. Fenimore et al., Defendants Below, Appellees.
[53 Del. 440] Donald W. Booker, Wilmington, for appellants.
[53 Del. 441] Samuel R. Russell, Jr., of Morford, Young & Conaway, Wilmington, for appellees.
[53 Del. 440] SOUTHERLAND, C. J., and WOLCOTT and BRAMHALL, JJ., sitting.
This is an appeal from a judgment of the Superior Court awarding damages against the State Highway Department for an alleged trespass to the lands of the appellees. The appellants are the members of the State Highway Department (hereafter State), and the appellees are certain individuals owning a tract of land in New Castle County (hereinafter Fenimores).
This appeal grew out of a condemnation proceeding instituted April 27, 1956 by the State. To the complaint filed, the Fenimores answered and filed a counterclaim seeking damages for an alleged trespass by the State upon their land.
The State moved to dismiss the Fenimores' counterclaim; the State's motion was denied on August 30, 1957, and, pursuant to Rule 42(b), Superior Court Rules, Del.C.Ann., the Superior Court directed that the counterclaim should be severed for trial before a jury as an issue separate from the State's complaint for condemnation.
On March 31, 1958, a hearing was held before condemnation commissioners on the State's complaint for condemnation, and a judgment entered authorizing condemnation and making an award to the Fenimores. The Fenimores appealed the judgment of condemnation which was reversed in part and affirmed in part by this Court. See 1 Storey 332, 145 A.2d 388.
[53 Del. 442] In the meantime, on March 27 and April 1, 1958, trial was had before the Superior Court without a jury on the Fenimores' counterclaim. On November 16, 1960, judgment was entered for the Fenimores in the amount of $7,898.00 as damages suffered by them as a result of trespass by the State. From this judgment, the State now appeals.
It is necessary to state briefly the facts concerning the trespass. It suffices to say that the Fenimore land, a portion of which is involved in this litigation, consists of a triangular piece bounded on the northeast by Center Road; on the southwest by Centreville Road, and on the northwest by Kirkwood Highway. The slope of land generally is from this triangular piece across Center and Centreville Roads. For a plot of the land see 1 Storey 334, 145 A.2d 389.
There is some confusion in this record concerning the prior proceedings between the parties. It is apparent that the State has acquired title by condemnation to the land designated as No. 1 on the plot appearing at 1 Storey 334. Yet, the State insists its condemnation action was dismissed despite the affirmance by this Court of the condemnation of Parcel No. 1. Since the parties to this appeal apparently assume this to be the fact, we will do the same since it seems fairly clear to us that the acts of trespass complained of were committed on land admittedly owned at the time in fee by the Fenimores and for which acts the Fenimores have not been compensated in any condemnation proceeding.
Some time around 1920, the Fenimores had installed a pipe underneath an open drainage ditch running along the westerly side of Center Road for the purpose of carrying off of their property surface water and the overflow from a septic tank. The ditch was located on land owned by
the Fenimores in fee but over which there was apparently a public easement for highway purposes. This pipe ultimately was connected by the State to a catch basin at the intersection of Center and Centreville Roads on the side of Centreville Road next to the [53 Del. 443] Fenimores' property and located partially, at least, on the Fenimore land. From that point the drainage was led under the Centreville Road to a catch basin on the other side, and from there through a pipe under Center Road, discharging into an open ditch running southerly along the side of Centreville Road.
All of this drainage installation was installed by the Fenimores with the express approval of the then authorities having jurisdiction over public highways, or by action later of the State, itself. In any event, the drainage system prior to the alleged trespass by the State carried off surface water and overflow from septic tanks from the property of the Fenimores, discharging it in an open ditch running southerly from the intersection of Center and Centreville Roads.
It appears that for a number of years prior to the events leading to this litigation either the authorities did not know of the presence of sewage in the drainage system or else took no steps to have it corrected. In any event, it appears that it was State action which caused the drainage from the Fenimores' property to be connected through the ...