State of New York
Supreme Court : County of Monroe

_______________________________

This opinion is uncorrected and is subject to revision in the official Reports

ANDREW V. SIRACUSE, J.

Of all the instrumentalities with which people deal on a regular basis, water is the least controllable. Both Roman law and the common law are filled with disputes over liability for water escaping from one piece of property to another. Such is the boundless creativity of events, though, that even today there are cases which cannot be easily placed in one well-worn groove or another.

In the present case the defendant owns and operates a group of storage warehouses. Adjacent to the defendant's property is a privately-owned roadway which gives access to the properties of the plaintiffs and is jointly owned by them. Photographs show that the defendant's warehouses are on land several feet higher in elevation than the roadway.

As part of the construction of the warehouses, which took place in the 1980s, the defendants installed back-flow prevention devices in their water supply. These are mandated by state law in order to protect the water system as a whole, and operate to ensure that no potentially polluted water will be drawn backwards into the system if there is a sudden reduction of water pressure. Water blocked from flowing into the water mains must go somewhere, however, and the back-flow devices therefore have drains. At least one of these drains protrudes from a warehouse building and empties down a slope alongside the plaintiffs' roadway. For all practical purposes, then, this drain leads excess water from the defendant's water system onto the plaintiffs' property.

Back-flow devices are a kind of insurance policy against uncommon malfunctions, and for many years there were no problems in the relationship between the parties. In April of 2003, however, during a major storm, the device in question went into operation. The exact cause of its operation is unclear. Although the storm caused a power outage, the back-flow device is mechanical and would not be affected by a power failure. Defendant believes that a stone lodged in the device. In any event, neither party argues that the device was in any way defective. It did exactly what it was supposed to do.

What it did, therefore, was drain considerable amounts of water onto the plaintiffs' property. This problem was aggravated by the coincidence that the device began to drain on a Saturday, and the storage complex was unattended until Monday morning. The water thus continued to pour onto the plaintiffs' property for at least two days before the problem was discovered and the drain shut off. Plaintiffs contend that their road surface was substantially damaged by the water and ice that accumulated during that time.

The plaintiffs' complaint lists two causes of action. The first, in negligence, can be dealt with easily. There is nothing here that shows a failure to exercise reasonable care. There were no failures of maintenance, no malfunctions, no carelessness in observation of weather conditions. Everything performed properly. Insofar as the complaint might be considered to sound in negligent design--by placing the drain so it emptied onto another property owner's land--the negligence would have taken place nearly twenty years before the damage, and it would be difficult even for defendant to maintain an action against its engineers. As the Court of Appeals made clear, the time of accrual of a negligent design or construction claim is completion of performance (City Sch. Dist. v Hugh Stebbins & Assocs., 85 NY2d 535, 538 [interaction of steel plug and copper pipe caused water line to burst fifteen years after construction; no cause of action]).

The other cause of action sounds in intentional discharge of water, which plaintiffs now, correctly, characterize as trespass. (The court is required, in any event, to construe the complaint liberally [CPLR 3026].) The defendant's primary argument in favor of dismissing the complaint is that its installation of back-flow devices was mandated by law, and they are thus insulated from liability.

This is incorrect. The back-flow devices were indeed required to be installed, but this mandate does not give the defendant carte blanche to dispose of the water from those devices in any way it chooses. As plaintiffs point out, the regulations governing back-flow devices state that the water must be retained within the installer's property. Once the back-flow device begins to pour out water, the rule governing liability is the same as that concerning any other amount of excess surface water or run-off. That rule was enunciated by the Court of Appeals in Kossoff v Rathgeb-Walsh (3 NY2d 583, 589-590): "Both [owners of the upper and lower estates] have equal rights to improve their properties, come what may to surface water, provided, of course, that the improvements are made in good faith to fit the property to some rational use for which it is adapted, and that the water is not drained into the other property by means of pipes or ditches" (as cited in Buffalo Sewer Authority v Town of Cheektowaga, 20 NY2d 47, 51, emphasis added).

This in itself does not resolve the case. The photographs show that the drain pipe from the back-flow device empties onto an unimproved dirt slope, which leads water directly onto the plaintiffs' roadway. Ought this slope to be considered a natural surface of the defendant's property, so as not to fall within the "pipes or ditches" forbidden by the Court of Appeals' rule?

The court holds that this would mistake form for substance. The design of the drain pipe focuses and concentrates the outflow, and the slope serves merely as a bed for the stream of water emitted from the drain. The water could never settle on the slope, which does nothing to contain or direct it. The excess water is drained directly onto the plaintiffs' land as surely and directly as it would be if the drain extended right to the property line.

The slope in this layout serves, in effect, as part of the drain itself. In no way can this situation be assimilated to that where a buildup of water on one piece of land seeks a natural outlet onto another. As such, this is for all intents and purposes a case in which one party has changed the natural overflow of water by means of pipes, and the defendant is thus answerable to the plaintiffs in trespass.

The plaintiffs have moved here for partial summary judgment on liability only, and the defendant has cross-moved for summary judgment dismissing the complaint. As noted above, the court dismisses the cause of action in negligence. The second cause of action states a viable claim in trespass, and the court grants the plaintiffs' motion for summary judgment as to liability on this claim. Trespass is actionable without proof of damages, but if the plaintiffs wish to recover anything more than nominal damages they must, of course, establish their losses by a preponderance of the evidence. Counsel for the plaintiffs may prepare the order. No costs or disbursements are to be imposed at this stage.

DATED: Rochester, New York

July 12, 2004

Andrew V. Siracuse, J.S.C.

This opinion is not available for publication in any official or unofficial reports, except the New York Law Journal, without the approval of the State Reporter or the Committee on Opinions (22 NYCRR 7300.1)

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