Day on Torts

No nuisance or trespass when neighbor did not increase surface water flow onto plaintiff’s property.

Where there was material evidence in the record to support the jury’s finding that plaintiff’s neighbor had not diverted water onto plaintiff’s property, the verdict for defendant on claims of nuisance and trespass was affirmed.

In Whitford v. Village Groomer & Animal Inn, Inc., No. M2020-00946-COA-R3-CV (Tenn. Ct. App. Sept. 17, 2021), plaintiff and defendant were neighbors. The southern property, which was owned by defendant, was “naturally situated a higher elevation than the northern section,” which was owned by plaintiff. The two properties were previously owned by a single owner, who had installed two storm drains on the northern property to divert surface water away from the property. He had also built a large shed on the southern property, which had three gutters that directed rainwater towards the northern section’s storm drains.

Plaintiff purchased the northern section of the property in 2002, and he built two buildings there to use in his veterinary business. One of the buildings was leased by defendant from 2002 to 2009. In 2007, defendant purchased the higher, southern section of the property. After the purchase, defendant “modified the existing shed,” and “some of the gutters on the new building directed rainwater toward the storm drains” on plaintiff’s property. Defendant also built three dog runs.

In 2011, plaintiff contacted a plumber and structural engineer after becoming concerned about major cracks in one of his buildings. The structural engineer found that a sinkhole was developing under the building and that costly repairs were needed. Plaintiff then filed this suit, asserting claims for nuisance and trespass and alleging that defendant “had created a nuisance by diverting water and animal sewage onto his property and causing a sinkhole to develop…” After a trial, the jury returned a verdict for defendant on both claims, which was affirmed on appeal.

The Court of Appeals first considered plaintiff’s claim that defendant created a “temporary nuisance by diverting water onto his property.” Tennessee law provides that “[i]n cases involving surface water, a property owner creates a nuisance when he wrongfully interferes with the natural flow of water across his land in a manner that causes flooding on adjacent property.” (internal citation and quotation omitted). Here, the Court ruled that there was “ample evidence that [defendant] did not wrongfully change the natural flow of surface water across its property in a way that caused the water to flood or pour in unnatural amounts upon [plaintiff’s] property[.]” The Court pointed out that the shed pre-existed defendant’s purchase of the property, and that when defendant made modifications to the shed, those modifications “did not change [the] natural drainage patterns in a way that caused water to pour in increased amounts upon [plaintiff’s] property.” The evidence showed that the additional gutters added to the shed pointed toward existing storm drains, and defendant’s expert testified that the modifications to the shed may have actually “caused a reduction in the amount of surface water flowing onto [plaintiff’s] property.”

Regarding plaintiff’s allegation that the three dog runs constructed by defendant increased the water flowing onto his property, the Court pointed out that plaintiff’s expert admitted that he did not do an “in-depth investigation to study the dog runs[.]” The Court also noted that defendant introduced evidence showing that the dog runs did not increase the water flow and that any excess water in that area was actually vacuumed out each day.

Moreover, the Court pointed out that the evidence supported a finding that the sinkhole in question “existed years before [defendant] constructed its new building” on the higher property. While defendant was renting space from plaintiff, it noticed cracks in the walls and floor tiles of the building within the first year of its lease. Plaintiff had someone cut an interior door multiple times during the lease period due to settling issues, and there was testimony that the settling issues and cracks were consistent with the “development of sinkhole conditions under the building.” Based on these facts, the Court of Appeals ruled that there was material evidence from which the jury could have found for defendant on the nuisance claim.

The Court next analyzed plaintiff’s trespass claim, which is defined as “any unauthorized entry upon the property of another.” (internal citation omitted). As was relevant to this claim, the Court pointed out that “the holder of an easement…is authorized to enter and use another’s property for a specific purpose,” and that an “easement may arise by implication from a previous common ownership.” (internal citations omitted).

In this case it was undisputed that defendant directed water towards plaintiff’s property by aiming gutters at a storm drain located on plaintiff’s property. The Court ruled, though, that there was “material evidence…from which the jury could have concluded that this did not constitute a trespass because [defendant] had an easement by implication to use the storm drains on [plaintiff’s] property.” The storm drains were on the property when the two lots were owned by a single owner, and the “jury could have concluded that [defendant’s] use of the storm drains was consistent with the original purpose of the easement.” (internal citation omitted). In addition, the gutters on the shed existed before defendant purchased the property and were already pointed toward the storm drains. While plaintiff argued that defendant’s modification to the shed increased the water flow, the Court had already noted that there was evidence in the record that such allegation was not accurate, and there was also evidence in the record that the dog runs did not increase the water flow to the northern property. The jury’s verdict for defendant on the trespass claim was therefore affirmed.

Tort cases based on the flow of surface water often include claims for trespass and/or nuisance. This opinion contains a good review of the law of both types of claim as they relate to water flow issues.

NOTE: This opinion was released 2.5 months after oral arguments in this case.

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