Kurpiel v. Hicks ( 2012 )

Present: All the Justices
PATRICIA G. KURPIEL, ET AL.
OPINION BY
v. Record No. 112192 JUSTICE DONALD W. LEMONS
September 14, 2012
ANDREW HICKS, ET AL.
FROM THE CIRCUIT COURT OF STAFFORD COUNTY
Sarah L. Deneke, Judge
In this appeal, we consider whether the Circuit Court of
Stafford County ("trial court") erred when it sustained the
demurrer of Andrew C. Hicks and Tammy L. Hicks (together, the
"Hicks") and dismissed the complaint of Patricia G. Kurpiel and
George L. Kurpiel (together, the "Kurpiels") alleging common
law trespass on the grounds that the Kurpiels did not allege
facts stating a cause of action upon which the requested relief
may be granted.
I. Facts and Proceedings Below
On June 1, 2011, the Kurpiels filed a complaint for
declaratory judgment and civil damages against the Hicks in the
trial court. The Kurpiels' complaint alleged common law
trespass against the Hicks, arguing that the Hicks "did not
develop their land in a reasonable manner" and that the Hicks
"directed and caused storm water . . . to flow upon the
Kurpiel[s'] property, in such amounts and in such quantity as
to cause damage[s] to the Kurpiel[s'] property and impair its
use." The Kurpiels sought a declaration of their respective
property rights and monetary damages for the Hicks' alleged
trespass. In response, the Hicks filed a demurrer and motion
to dismiss, arguing that "the Kurpiels d[id] not allege a basis
for declaratory judgment because the acts of the Hicks that the
Kurpiels complain[ed] of ha[d] already 'occurred and matured'
when their [c]omplaint was filed," and the Kurpiels had "other
remedies available." On August 1, 2011, the trial court
entered an order sustaining the Hicks' demurrer, without
prejudice, as to the Kurpiels' claim for declaratory judgment
and permitting the Kurpiels to file an amended complaint.
The Kurpiels subsequently filed an amended complaint
containing one count of common law trespass, requesting
injunctive relief to prevent the further trespass of surface
water onto the Kurpiels property as a result of the Hicks'
"unreasonable development of the[ir] adjacent property" and
$35,000 in monetary damages. The Kurpiels' amended complaint
alleged that the Hicks "did not develop their land in a
reasonable manner," in violation of the modified common law
rule applicable to surface water and, as a result, directed and
caused storm water to run onto the Kurpiels' property, which
caused damage, and such unauthorized entry of storm water
constituted a trespass.
Specifically, the Kurpiels alleged that the Hicks: (1)
began to develop their property, which adjoined the Kurpiels'
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property, for residential use in early 2007; (2) stripped their
land "of virtually all vegetation"; (3) "excessively cleared
[their land] in violation of state law and County regulations";
(4) did not utilize proper drainage controls; (5) "left the
land unvegetated longer than necessary"; (6) replaced plants
along the respective properties' border "with insufficient and
inadequate vegetative cover"; (7) "significantly altered the
storm water drainage situation, changed the elevation of the
land, and brought in additional fill, which . . . caused
excessive storm water to flow from the Hicks' property onto the
Kurpiel lands"; (8) knew that a storm water problem did not
exist prior to their development of their property, but
continued to "develop[] their property without regard to
creating a new problem"; and (9) failed to control resulting
"sediment loads and siltation running onto the Kurpiel[s']
property."
The Kurpiels further alleged that: (1) prior to the Hicks'
development of their property, the existing plantings,
vegetation, and topography of the land had contained the water
runoff; (2) with each significant storm, the discharge of storm
water from the Hicks' property physically entered and
interfered with the Kurpiels' exclusive possession of their
property; and (3) none of the Kurpiels' efforts to control the
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resulting surface water drainage, "including diversion of roof
drains, sand bags and plantings" were successful.
In response, the Hicks filed a "demurrer and motion to
dismiss with prejudice," arguing that "[t]he few factual
allegations contained in the Kurpiels' [a]mended [c]omplaint
[did] not state a cause of action upon which the relief sought"
could be granted. The Hicks argued that surface water is a
"common enemy" and, under Virginia law, landowners may fight
off surface water subject to the exception set forth in Mullins
v. Greer, 226 Va. 587, 589, 311 S.E.2d 110, 112 (1984) (stating
that "one may, in the reasonable development of his property,
grade it or erect a building thereon and not be liable for
discharging additional diffused surface water as a result
thereof") (internal citations omitted). The Hicks further
argued that "the Kurpiels [did] not and cannot allege facts
that the Hicks did not develop their property in the 'usual and
customary way' . . . ."
The Kurpiels filed a memorandum in opposition to the
Hicks' demurrer, arguing that whether the Hicks developed their
property in the usual and customary way is only one factor to
be considered, and that the modified common law rule applicable
to surface water requires consideration of a number of factors
related to reasonable use. The Kurpiels argued that the Hicks
"significantly altered the storm water drainage, changed the
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elevation of the land, and brought in additional fill, all
causing excessive surface water flow," and these allegations
raised questions regarding the reasonableness of the Hicks'
actions. The Kurpiels argued that it is immaterial whether the
Hicks had a right to build a home on their land, grade it, or
fend off surface water; rather, the issue is whether the Hicks
"acted reasonably in the development and changes that they
undertook," and whether the Hicks undertook "such actions in a
reasonable manner so as to not injure the property of another."
Accordingly, the Kurpiels argued that they pled sufficient
facts to establish a cause of action for trespass.
The trial court sustained the Hicks' demurrer with
prejudice, finding that the Kurpiels failed to allege facts
sufficient to support a cause of action for trespass.
Specifically, the trial court held that the Kurpiels' complaint
"fail[ed] to allege facts which could support a claim that the
[Hicks'] use of the property [wa]s unreasonable, that the
[Hicks] acted in bad faith or with an intention to interfere
with [the Kurpiels'] property or that the property
modifications were done improperly or carelessly."
The Kurpiels timely filed their notice of appeal, and we
granted an appeal on the following assignments of error:
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1. The trial court erred in its interpretation and
application of the modified common law rule governing
the control of surface water drainage by ruling upon
whether Plaintiffs' allegations sufficiently pleaded
that Defendants' use of their property is
unreasonable rather than whether the Defendants'
efforts to control surface water was unreasonable.
2. The trial court erred in ruling that the Plaintiffs
failed to allege sufficient facts to support a cause
of action for trespass based on violation of
Virginia's modified common law rule [applicable] to
surface water where Plaintiffs had alleged that
Defendants (1) developed their land in a reasonable 1
manner by excessive[ly] clearing their land and
failing to apply proper drainage controls; (2)
significantly altered the storm water drainage; (3)
changed the elevation of the land; (4) brought in
additional fill; (5) cleared vegetation from legally
protected areas and between the adjacent properties;
(6) performed extensive regrading; and (7) violated
county ordinances and state laws for erosion and
sediment control, all of which Plaintiffs asserted
constituted a knowing, careless and unreasonable use
of land which injured Plaintiffs by directing
significant surface water and soil erosion onto
Plaintiffs' land which had never occurred before.
3. The trial court erred in ruling that Plaintiffs
failed to allege sufficient facts to support a cause
of action for trespass where Plaintiffs had alleged
that Defendants (1) directed and caused storm water
to flow to Plaintiffs' land; (2) which included
substantial amounts of silt and sediment; (3) which
damaged Plaintiffs['] land by washing out driveways
and walkways and washing mud, debris and silt into
the waterway adjoining the Plaintiffs' property.
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The Kurpiels have explained, to our satisfaction, that
"[t]here was a typographical error in the statement of the
error assigned in the Petition for Appeal." The Kurpiels'
Petition for Appeal should have read "developed their land in
an unreasonable manner" rather than "developed their land in a
reasonable manner."
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II. Analysis
A. Standard of Review
Well-established principles guide our review of a trial
court's judgment sustaining a demurrer.
The purpose of a demurrer is to determine whether
a [complaint] states a cause of action upon which
the requested relief may be granted. A demurrer
tests the legal sufficiency of facts alleged in
pleadings, not the strength of proof.
Accordingly, we accept as true all properly pled
facts and all inferences fairly drawn from those
facts. Because the decision whether to grant a
demurrer involves issues of law, we review the
circuit court's judgment de novo.
Abi-Najm v. Concord Condo., LLC, 280 Va. 350, 356-57, 699
S.E.2d 483, 486-87 (2010) (citations and internal quotation
marks omitted).
B. The Trial Court Erred
in Sustaining the Hicks' Demurrer
The Kurpiels argue that the trial court erred in
sustaining the Hicks' demurrer as a result of its conclusion
that the Kurpiels "failed to allege sufficient facts to support
a cause of action for trespass based on violation of Virginia's
modified common law rule [applicable] to surface water." We
agree with the Kurpiels.
We have previously recognized that an action for common
law trespass to land derives from the "general principle of law
[that] every person is entitled to the exclusive and peaceful
enjoyment of his own land, and to redress if such enjoyment
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shall be wrongfully interrupted by another." Tate v. Ogg, 170
Va. 95, 99, 195 S.E. 496, 498 (1938). We have also recognized:
[A] trespass is an unauthorized entry onto
property which results in interference with the
property owner's possessory interest therein.
Thus, in order to maintain a cause of action for
trespass to land, the plaintiff must have had
possession of the land, either actual or
constructive, at the time the trespass was
committed.
In addition, to recover for trespass to
land, a plaintiff must prove an invasion that
interfered with the right of exclusive possession
of the land, and that was a direct result of some
act committed by the defendant. Any physical
entry upon the surface of the land constitutes
such an invasion, whether the entry is a walking
upon it, flooding it with water, casting objects
upon it, or otherwise.
Cooper v. Horn, 248 Va. 417, 423, 448 S.E.2d 403, 406 (1994)
(internal citations and quotation marks omitted).
Significantly, for the purposes of this case, Virginia
applies the modified common law rule applicable to surface
water. Mullins, 226 Va. at 589, 311 S.E.2d at 112. Under this
rule, "surface water is a common enemy, and each landowner may
fight it off as best he can, provided he does so reasonably and
in good faith and not wantonly, unnecessarily or carelessly."
Id. (emphasis added; internal quotation marks omitted).
We observed in McGehee v. Tidewater Railway Co.:
Two general rules prevail in the United
States with respect to surface water, the civil
law rule and the common law rule. The former is
thus expressed in the Code Napoleon, sec. 640:
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"Inferior lands are subjected, as regards those
which lie higher, to receive the waters which
flow naturally therefrom to which the hand of man
has not contributed. The proprietor of the lower
ground cannot raise a bank which shall prevent
such flowing. The superior proprietor of the
higher lands cannot do anything to increase the
servitude of the lower."
On the other hand, by what is known as the
common law rule . . . "surface water is regarded
as a common enemy, and every landed proprietor
has the right, as a general proposition, to take
any measures necessary to the protection of his
property from its ravages, even if in doing so he
prevents its entrance upon his land and throws it
back upon a coterminous proprietor."
108 Va. 508, 509-10, 62 S.E. 356, 356-57 (1908).
Significantly, however, we further stated in McGehee:
While it is true that this so-called common
law doctrine prevails in Virginia, it is,
nevertheless, subject to the important
qualification, that the privileges conferred by
it may not be exercised wantonly, unnecessarily,
or carelessly; but is modified by that golden
maxim of the law, that one must so use his own
property as not to injure the rights of another.
It must be a reasonable use of the land for its
improvement or better enjoyment, and the right
must be exercised in good faith, with no purpose
to abridge or interfere with the rights of
others, and with such care with respect to the
property that may be affected by the use or
improvement as not to inflict any injury beyond
what is necessary.
Id. at 510, 62 S.E. at 357.
As in this case, the plaintiff in McGehee brought an
action for trespass against the defendant to recover damages
for losses sustained when the plaintiff's property was flooded.
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Id. at 509, 62 S.E. at 356. The defendant railway company in
McGehee had "acquired a strip of ground adjoining the
plaintiff's lot . . . for its right of way and passenger
station and approaches." Id. In the construction of a roadbed
over its acquired strip of ground, the railway company did not
make a "provision for the escape of surface water through its
premises by culvert, drain, or otherwise. The result of that
method of construction was to retain and cast back the waters
upon the plaintiff's lot." Id. The plaintiff's property was
subsequently flooded and damaged; nonetheless, the trial court
ruled for the defendants in the plaintiff's action for
trespass. Id.
Upon review, we held that the trial court in McGehee
"erred in holding, as a matter of law, that no duty rested upon
the defendant to supply reasonably adequate means of escape for
surface water under its roadbed and through its property." Id.
at 513, 62 S.E. at 358. We held that the "question, whether or
not the company, in the construction of its road and
improvement of the grounds and approaches to its station, was
reasonably prudent and careful to avoid injury to the plaintiff
from the flooding of surface water, ought to have been
submitted to the jury." Id. (emphasis added).
In this case, the Kurpiels' amended complaint alleged one
count of trespass, resulting from the Hicks' careless,
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unnecessary, and unreasonable development of their property, in
violation of the modified common law rule applicable to surface
water. 2 The Kurpiels' amended complaint alleged that they were
the owners of the damaged land in question, and that the Hicks'
actions resulted in the interference with the Kurpiels' right
to exclusive possession of their land. The Kurpiels further
alleged an unauthorized entry onto their land from the Hicks'
actions directing and causing storm water, including sediment
and silt, to flow from the Hicks' property onto the Kurpiels'
property.
Moreover, the Kurpiels alleged in their amended complaint
that the Hicks "did not develop their land in a reasonable
manner" and that the Hicks' actions were "careless, and
unnecessary" because they: (1) stripped their land "of
virtually all vegetation, including unauthorized removal of
vegetation within the Resource Protection Area, a protected
land disturbance zone established by the Chesapeake Bay
Preservative Act"; (2) "cleared and/or improperly disturbed
these protected areas" on their property; (3) "excessively
cleared [their land] in violation of state law and County
2
The Kurpiels argue on appeal that they pled alternative
claims of trespass and violation of the modified common law
rule applicable to surface water in the trial court. We
disagree; the Kurpiels' amended complaint clearly alleges only
one count of common law trespass based upon the Hicks' alleged
violation of the modified common law rule applicable to surface
water.
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regulations"; (4) "did extensive regrading of the property";
(5) changed the elevation of the property; (6) "brought in
additional fill dirt"; (7) "left the land unvegetated longer
than necessary"; (8) demanded the Kurpiels remove plantings
along the property border, and then "replaced such plants with
insufficient and inadequate vegetative cover"; (9) did not use
proper drainage controls; and (10) "failed to control sediment
loads and siltation running onto the Kurpiel[s'] property."
Whether the actions taken by the Hicks in developing their
property were in fact reasonable, in good faith and not wanton,
unnecessary or careless, is a factual question to be decided by
the fact finder, not a question of law to be decided on
demurrer. See Mullins, 226 Va. at 589, 311 S.E.2d at 112
(stating that "surface water is a common enemy, and each
landowner may fight it off as best he can, provided he does so
reasonably and in good faith and not wantonly, unnecessarily or
carelessly") (internal quotation marks omitted); McGehee, 108
Va. at 513, 62 S.E. at 358 (concluding that the trial court
erred because "[t]he question, whether or not the [defendant],
in the construction of its road and improvement of the grounds
and approaches to its station, was reasonably prudent and
careful to avoid injury to the plaintiff from the flooding of
surface water, ought to have been submitted to the jury").
Significantly, "we accept as true all properly pled facts and
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all inferences fairly drawn from those facts" when reviewing a
trial court's decision to sustain a demurrer. Abi-Najm, 280
Va. at 357, 699 S.E.2d at 487.
Accordingly, we hold that the Kurpiels' amended complaint
alleged sufficient facts to state a cause of action for common
law trespass based upon a violation of the modified common law
rule applicable to surface water and that the trial court erred
in sustaining the Hicks' demurrer.
III. Conclusion
We hold that: (1) the Kurpiels' amended complaint alleged
sufficient facts to state a cause of action for common law
trespass based upon a violation of the modified common law rule
applicable to surface water; and (2) the trial court erred in
sustaining the Hicks' demurrer. Accordingly, we will reverse
the judgment of the trial court and remand for further
proceedings consistent with this opinion.
Reversed and remanded.
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