E. J. HOLLINGSWORTH COMPANY, a Delaware corporation, Plaintiff,
JARDEL CO., Inc., a Delaware corporation, Defendant.
[40 Del.Ch. 197] Frank O'Donnell of Berl, Potter & Anderson, Wilmington, for plaintiff.
Howard M. Berg and John M. Bader, Wilmington, for defendant.
Plaintiff, the owner of business real estate located in the southeast quadrant of the intersection of Old Capitol Trail and Newport Gap Turnpike brings this action to enjoin the defendant from collecting and dumping its surface water by means of a storm sewer into a pipe on plaintiff's land which in turn empties into a ditch running across plaintiff's property. This is the decision after final hearing.
Although defendant argues to the contrary, I find as a fact that we are not here concerned with a stream flowing across plaintiff's property. Plaintiff's lands have served for innumerable years as the natural drainage area for the surface water of much of the surrounding land to the north and west, including most of defendant's property. It largely entered plaintiff's property from the [40 Del.Ch. 198] west and then crossed plaintiff's lands in a meandering fashion to a culvert under the railroad tracks which form the eastern border of plaintiff's property. Quite a few years ago a pipe was put in from a basin in the Old Capitol Trail (Lincoln Highway) located at the front of plaintiff's property to a ditch beginning about 80 feet back from the road. Plaintiff had caused a ditch to be dug to carry the surface water along a relatively straight line to the eastern boundary of its property and then north parallel to certain railroad tracks for a few hundred feet to the culvert beneath the tracks. Thus, the 'rights' of the appropriate property owners, including defendant, to have their surface water flow in its usual way across plaintiff's lands cannot be and is not denied. I conclude, contrary to plaintiff's contention, that there has been created in defendant's favor a drainage easement across plaintiff's property. The fact that plaintiff caused an open ditch to replace the natural line of flow of the surface water does not diminish defendant's rights. The issue then is as to defendant's rights in such easement.
I need not enter into a discussion as to whether the law concerning the directing of surface water into natural streams is applicable to artificial ditches. Compare Saelens v. Pollentier, 7 Ill.2d 556, 131 N.E.2d 470. I say this because I am satisfied that the crucial question is whether the action to be taken by defendant will impose an excessive and continuing burden on the easement across plaintiff's land. Compare 2 Thompson on Real Property (perm. ed.) §§ 678, 697; 56 Am.Jur., Waters § 71. The treatment of the problem may also be expressed in terms of 'nuisance'. The court so viewed the matter in Ciconte v. Shockley, 31 Del.Ch. 376, 75 A.2d 242, holding that a property owner cannot artificially collect and disburse surface waters in increased and unnatural quantities upon his neighbor to his substantial injury or damage. Compare Chorman v. Queen Anne's R. Co., 3 Pennewill 407, 54 A. 687; Staats v. Hubbard, 31 Del.Ch. 41, 63 A.2d 856.
I conclude that one may not in effect substantially enlarge or change a natural drainage easement by artificially collecting
and casting the surface water on the lower owner to his substantial [40 Del.Ch. 199] damage. What is the defendant preparing to do here and what will its effect be on the plaintiff's property?
Defendant proposes to black-top an area of about 27 acres. This land is now in its natural state and, as such, most of 'its' surface water is either absorbed or disbursed before reaching plaintiff's property. Only two-tenths of the water falling on defendant's land from any storm now flows off the ground. After the paving is completed nine-tenths will flow off. After the improvements are completed, it is clear that the amount of surface water reaching plaintiff's property will be increased about fivefold. In a ten year frequency storm there will be about 90,000 gallons a minute reaching plaintiff's land. This water will reach plaintiff's property by being collected and transmitted some several hundred yards in a storm sewer recently laid along the Old Capitol Trail to the catch basin in front of plaintiff's property. From there it will run into a pipe running under plaintiff's parking lot and then into the head of the open ditch which traverses plaintiff's property. In addition to defendant's land, about six acres from the bowling alley and parking lot across the Kirkwood Highway now drain into the defendant's land and this water will also enter the pipe leading to plaintiff's property. Finally, some additional five acres will ultimately drain into plaintiff's land in the same manner.
It is clear that the amount and rate of flow of the water crossing plaintiff's land will be greatly increased at least when a so-called 10 year frequency storm occurs. It is anticipated that this condition will arise about four times a year. The parties tacitly agree that good engineering standards call for an installation of facilities which will take care of this type of storm.
The experts on both sides were in substantial agreement that a 10 year frequency storm would flood a part of plaintiff's property. Defendant says it would merely add to the flooding of a valueless part of plaintiff's land which is located in the rear and which is admittedly partly flooded now when there is such a storm. It is clear, and defendant's expert conceded, that to carry the increased flow without a flooding of other and admittedly valuable portions of [40 Del.Ch. 200] plaintiff's property, there would not only have to be a larger or additional pipe under the parking lot (which defendant is willing to install) but the ditch would have to be widened, deepened and protected for its full length of several hundred yards. It is now about five feet across the top but it would presumably have to be enlarged to as much as 15 feet, plus a bank to prevent flooding of a large part of plaintiff's property after defendant's water is directed there. Obviously an open ditch of such proportions will adversely affect the potential value of such land and will substantially enlarge the existing easement. Defendant has no right to arbitrarily enlarge its easement.
Defendant emphasizes that in a ten year frequency storm there is flooding now on a portion of plaintiff's land. This is true in the area near the railroad underpass. This would not justify the flooding of a much larger area. But of vital importance, defendant concedes that there will be much greater and more damaging flooding unless the easement is substantially enlarged and protected. Defendant is not entitled to so enlarge its easement regardless of issue as to the damage which may result from the flooding of what defendant contends to be the worthless portion of plaintiff's property.
Defendant argues that the court should balance the relative economic benefit and burden in deciding this case. It argues that the benefits resulting from the improvement of its land by way of the creation of a shopping center, are so great that they far outweight the damage which may result to plaintiff's land. In the ...