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STREET v. TACKETT
Factual and Procedural Background
John H. Street owns 20 acres of land located within the incorporated limits of Oxford, Alabama, contiguous to property owned by William and Betty Tackett situated outside Oxford in an unincorporated, rural area. The Street property is higher in elevation and lies north of the Tackett property, with the municipal boundary line serving as their common boundary.
Street purchased the land in 1977 intending to develop a subdivision, initiating development in 1980 by cutting streets and drainage ditches. Surface water runoff from Street's property, carrying mud, flowed into a pond on the Tacketts' property, causing environmental damage including fish deaths, damage to trees, and sediment accumulation reducing the pond's depth.
After unsuccessful attempts to resolve the water flow issue between the parties, the Tacketts sued Street for damages in the Circuit Court of Talladega County. The jury awarded the Tacketts $18,000, and the trial court denied Street's motions for a new trial or judgment notwithstanding the verdict. Street appealed, challenging the trial court's refusal to give his requested jury instruction on the common law rule and the giving of a jury instruction requested by the Tacketts regarding liability for channelizing surface water.
Legal Issues Presented
- Which rule of law applies when surface water flows from an upper landowner's property located within an incorporated municipality onto a lower landowner's property situated in an unincorporated area: the common law rule, the civil law rule, or the modified civil law rule?
- Whether the trial court erred in refusing to give the appellant's requested jury instruction on the common law rule.
- Whether the trial court properly gave the appellees' requested jury instruction regarding liability for channelizing surface water.
Arguments of the Parties
The opinion does not contain a detailed account of the parties' legal arguments.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Mitchell v. Mackin, 376 So.2d 684 (Ala. 1979) | Describes the common law, civil law, and modified civil law rules regarding surface water flow between properties. | Used to explain the distinctions between the rules and to support the court's adoption of the modified civil law rule in this case. |
| Kay-Noojin Development Co. v. Hackett, 253 Ala. 588, 45 So.2d 792 (1950) | Limits the common law rule by prohibiting channelization of surface water to the injury of a lower owner within municipal limits. | Supports the limitation on the common law rule within municipalities as part of the court's analysis. |
| Hughes v. Anderson, 68 Ala. 280 (1880) and other Alabama cases | Various cases applying surface water rules when both properties are within the same jurisdiction (either both in a city or both in unincorporated areas). | Referenced to highlight that this case is unique because the upper and lower properties lie in different jurisdictional areas. |
| Pendergrast v. Aiken, 293 N.C. 201, 236 S.E.2d 787 (1977) | States the reasonable use rule, allowing reasonable use of land even if surface water flow is altered, with liability for unreasonable interference causing substantial damage. | Used as a comparison to the court's adopted modified civil law rule, aligning the court's holding with the reasonable use principle. |
Court's Reasoning and Analysis
The court recognized three distinct rules governing surface water disputes: the common law rule applicable within municipalities, the civil law rule applicable outside municipalities, and the modified civil law rule which is a middle ground. The court noted that prior Alabama cases involved both properties being within the same jurisdictional boundary, either both inside or both outside a municipality.
Given the unique circumstance where the upper land lies within an incorporated city and the lower land lies outside in an unincorporated area, the court determined that neither the pure common law nor the strict civil law rule was fully appropriate. Instead, the court adopted the modified civil law rule, which permits an upper landowner to alter the flow of surface water to improve their property but imposes a duty not to cause substantial damage or unreasonably interfere with the lower landowner's rights.
This approach balances the economic interests of both parties and aligns with the reasonable use rule advocated by the amicus curiae. The court found that the trial judge did not err in refusing the requested common law instruction and that any failure to instruct on the modified civil law rule was harmless error given the evidence presented. The evidence showed accelerated water flow caused by Street's improvements, resulting in significant damage to the Tackett property, supporting the jury's verdict.
Holding and Implications
The judgment of the trial court is AFFIRMED.
The court held that the modified civil law rule applies when surface water flows from property within an incorporated municipality onto property in an unincorporated area. This rule allows the upper landowner to alter water flow for property improvement but prohibits causing substantial damage or unreasonable interference to the lower landowner.
The direct effect of this decision is the affirmation of the $18,000 judgment for the Tacketts. The court did not establish new precedent beyond adopting the intermediate modified civil law rule for this jurisdictional scenario, and no broader implications beyond the parties’ dispute were discussed.
ALMON, Justice.
We are asked to decide which rule of law — the common law rule, the civil law rule, or the modified civil law rule — applies when surface water flows or runs from the property of an upper landowner that is located or situated in an incorporated area onto property of a lower landowner that is situated in an unincorporated area.
John H. Street owns 20 acres of land contiguous to property owned by William and Betty Tackett. The Street property is situated inside the limits of Oxford, Alabama, an incorporated municipality. William and Betty Tackett's land is situated outside Oxford in an unincorporated area — rural, to be more specific. The municipal boundary line is the common boundary line of the Street and Tackett properties. The Street property is higher in elevation and lies north of the Tackett property.
Street bought the land in 1977 for the purpose of developing a subdivision. He had, in the past, developed three subdivisions north of, and adjacent to, the subject 20 acres. Development of this property began in 1980, with John H. Street cutting streets and drainage ditches along the streets. When rain fell, the surface water ran into a 3/4-acre pond situated on the Tacketts' property, carrying mud with it. The muddy water caused the fish in the pond to die, caused damage to some trees, reduced the depth of the pond, and did other damage.
William Tackett confronted Street about the water problem. Street offered to run a ditch away from Tackett's pond. Tackett disliked the idea. On two occasions Street placed bales of hay to impede the flow of the water. A stalemate existed between them, and finally, the Tacketts sued Street for damages in the circuit court. The jury awarded the Tacketts $18,000.00. The trial court denied a motion for new trial or JNOV and entered judgment for the Tacketts for $18,000.00. Street appeals, primarily on the ground that the trial judge erred (1) when he did not give Street's requested written charge on the common law rule, and (2) in giving the following charge that was requested by the Tacketts:
"An upper proprietor who collects surface water into a channel and casts it upon property of a lower proprietor to his damage when if it were not so collected the water would be scattered and diffused is liable for the damage though the property is located within the incorporated town or city."
Our cases have stated different rules to apply to problems associated with surface water. A short history of this area of the law is set out in Mitchell v. Mackin, 376 So.2d 684 (Ala. 1979).
Mitchell says that the common law rule permits one to restrict or control the flow of surface water with little or no limitation whatsoever. The proprietor may deal with surface water as he chooses, regardless of the consequence to his neighbor. This rule applies to owners of property within municipal limits, but has been limited to the effect that a lower owner may dam surface water, but an upper owner may not channelize it so as to injure the lower owner. Mitchell at 688; Kay-Noojin Development Co. v. Hackett, 253 Ala. 588, 45 So.2d 792 (1950).
For those proprietors located outside the limits of a municipality, the civil rule applies. This rule provides that one may not interfere with the natural flow of surface water in such a way as to injure his neighbors and that the lower land bears a servitude to the higher land to receive only that water which naturally flows from the higher. See Mitchell at 686. This may be said to be the strict civil law rule. Mitchell, under its set of facts, applied the modified civil law rule. This rule, simply stated, says that an upper owner may not interfere with the natural flow of surface water in such a way as to injure his neighbor, but may concentrate it and cause it to flow more rapidly, and in greater volume on the lower land, with prudent regard for the welfare of his neighbor.
In the cases that this Court has decided in applying these surface water rules, both the upper land and the lower land have been in a city or both have been in an unincorporated area. See Hughes v. Anderson, 68 Ala. 280 (1880); Crabtree v. Baker, 75 Ala. 91 (1883); Farris McCurdy v. Dudley, 78 Ala. 124 (1884); Hall v. Rising, 141 Ala. 431 (1904); Southern Railway Co. v. Lewis, 165 Ala. 555, 51 So. 746 (1910); Shanan v. Brown, 179 Ala. 425, 60 So. 891 (1913); Ex parte Tennessee Coal Iron R. Co., 206 Ala. 403, 90 So. 876 (1921); Vincent v. Turner, 252 Ala. 271, 40 So.2d 863 (1949); Kay-Noojin Development Co. v. Hackett, 253 Ala. 588, 25 So.2d 793 (1950); Kay-Noojin Development Co. v. Kinzer, 259 Ala. 49, 65 So.2d 510 (1953); Dekle v. Vann, 279 Ala. 153, 182 So.2d 885 (1966); Mitchell, supra,; Sargent v. Lambert Construction Co., 378 So.2d 1153 (Ala. 1979); and Johnson v. Washington, 474 So.2d 651 (Ala. 1985).
This appears to be the first case where the upper land is in a city and the lower land is outside the city. We believe that an intermediate position should be taken in reaching a decision. Both Street and Tackett have economic interests at stake. They have tried to resolve these interests by bargaining but they have failed. We conclude that the modified civil law rule should be applied in this case, and we hold that the upper land owner can alter the flow of surface water to improve his property; however, he has a duty not to unduly burden the lower property by causing substantial damage and not to unreasonably interfere with the possessory rights of the lower landowner. We believe that this holding compares favorably with the reasonable use rule urged in the amicus curiae brief filed by the Alabama Home Builders Association.
The reasonable use rule is stated in Pendergrast v. Aiken, 293 N.C. 201, 216, 236 S.E.2d 787, 796 (1977):
"Each possessor is legally privileged to make a reasonable use of his land, even though the flow of surface water is altered thereby and causes some harm to others, but liability is incurred when his harmful interference with the flow of surface water is unreasonable and causes substantial damage."
The trial judge did not err by refusing to give the requested charge on the common law rule. Even though he did not charge the jury on the modified civil law rule, we hold that the failure to do so was error without injury and that the evidence was sufficient to sustain the verdict finding Street liable. First, a 24" culvert constructed by Street caused the water to flow at an accelerated velocity; the water contained great quantities of mud and silt. Second, Street severed a dam situated between the Street and Tackett properties, causing more water to run onto the Tacketts' property. Third, the mud flowing into the pond caused the fish to die. Fourth, a 10-foot-deep pond became a 4-foot-deep pond because of the accumulation of mud and silt flowing from the Street subdivision. Furthermore, the jury viewed the land and saw the damage.
The judgment of the trial court is affirmed.
AFFIRMED.
TORBERT, C.J., and MADDOX, JONES, SHORES, BEATTY, ADAMS and STEAGALL, JJ., concur.
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