Moore v. Standard Paint & Glass Co. of Pueblo

Mr. Justice Knauss

dissenting:

I must respectfully dissent. Research fails to disclose any case in point on the factual situation here presented.

In 56 Am. Jur. “Waters” §72, p. 558, it is stated with apparent authority: “It has frequently been stated that the right of an owner of land to occupy and improve it in such a manner and for such purposes as he may see fit, either by changing the surface or the erection of buildings or other structures thereon, is not restricted- or modified by the fact that his own land is so situated with reference to that of adjoining owners that the alteration in the mode of its improvement or occupation in any portion of it will cause water, which may accumulate thereon by rains and snows falling on its surface or flowing onto it over the surface of adjacent lots either to stand in unusual quantities on the other adjacent lands, or to pass into and over the same in greater quantities or in other directions that they were accustomed - to flow.”

Where a party grades his land in such a way that it is reasonable and not unexpected in a metropolitan area, no wrong is committed. U.S. v. Shapiro, 202 Fed. (2d) 459.

“ * * * each possessor is legally privileged to make a reasonable use of his land, even though the flow of surface waters is altered thereby and causes some harm to others, but incurs liability when his harmful interference with the flow of surface waters is unreasonable.” Armstrong v. Francis Corp., 20 N.J. 320, 120 A. (2d) 4. This rule in its application has the particular virtue of flexibility, each case presenting questions of fact as to the amount and character of harm caused, its foreseeability and. the purpose and motive of the possessor in dispélling water from his property, as well as other relevant matters.

To find the defendants liable in the case before us it must be determined as a matter of law that the utilization of metropolitan land for below level parking is unusual, unexpected, unreasonable or negligent. With modern day urban parking problems, I cannot subscribe to a rule imposing liability on a property owner in the absence of some showing that he was bound to anticipate a devastating cloudburst at some indefinite time in the future, and that if it occurred, damage would result to plaintiffs as a natural consequence.

The majority opinion imposes a burden of foreseeability on defendants not imposed on the adjoining property owner who is similarly situated. In this case both buildings were completely destroyed by fire on August 29, 1953. Defendants removed the debris and entered into a lease in December 1953 with Parkrite to operate a parking lot thereon. Parkrite leveled the ground and graveled the area, built a ramp from the street and commenced operations. During this period Standard comménced reconstruction of its building, well-knowing that the basement area immediately adjoining its property existed, and was being made use of as a parking lot. In the rebuilding Standard excavated a full basement, lowered the level of its former partial basement to that of the parking lot, and attempted to waterproof the wall of its property facing the parking lot. At no time was any objection voiced by Standard, or warning given of probable danger or damage from operation of the parking lot until after the torrential cloudburst of October 7, 1957.

If, as the majority holds, the cloudburst, together with inadequate storm sewers and the consequent flooding of the parking area was foreseeable by defendant and Parkrite, it was equally foreseeable by Standard.

Most, if not all, of the buildings, including Standard’s, in the same area accumulated water in the basements due to water backing up from the inadequate storm sewer system. Standard had drains and a sump pump in its basement apparently installed to meet just such a contingency as occurred on the day of the cloudburst.

The record fails to disclose what proportion of the water in Standard’s basement came from the parking lot through the wall and the amount which backed up in the sewer. Assuming that the act of omission of defendants and Parkrite in maintaining the parking lot as they did was a negligent act, it cannot be said that the injury “would not have been produced but for such wrongful act or omission.” Indeed it may be that the injury was produced entirely by the inadequate sewer system. Both the trial court and this court must indulge in conjecture as to what actually caused the injury complained of. Certainly there is no evidence as to the amount of damage done by water which accumulated on the property of defendants.

The case of San Joaquin Grocery Co. v. Trewhitt, et al., 80 Cal. A. 371, 252 Pac. 332, is somewhat analogous to the instant case. There water from four different sources accumulated on adjoining property. Water seeped into plaintiff’s basement and damaged goods stored there. Plaintiff brought an action and was awarded damages by a jury. The judgment entered thereon was reversed for failure of proof that the damage incurred resulted from the water accumulated on adjoining land by defendants, the court concluding that the verdict was based on guess, conjecture or surmise.

In the instant case the proof offered required the trial court to guess or conjecture as to the extent of the injury from water which came through the wall of plaintiff’s property. Tenuous inferences cannot take the place of proof of the fact.

Standard well knew when it rebuilt its structure that its property was situate in a low lying section of Pueblo; it attempted to waterproof its wall and installed drains and a sump pump in its basement, apparently anticipating what finally happened.

The trickle of water which came through the wall of plaintiffs’ property from the parking lot was inconsequential as compared to the amount deposited from the backing up of the storm sewer.

To hold defendants liable would mean that every time a building is burned or torn down the owner would have to bring in a mountain of dirt to fill the excavation, a thing which I do not believe in this day of offstreet parking the courts can or should legislate upon.

If the majority opinion is predicated on negligence, where is the evidence of negligence? I fail to find anything in the record which justifies the statement in the majority opinion that plaintiff in error allowed a “dangerous condition” to exist. Again, what authority can be cited to fix liability? Certainly none has been cited in the majority opinion. If the “But For” theory is applicable, it is just as logical to conclude that “But For” the action of Standard in lowering and extending its original basement area the damage complained of would not have occurred.

I, therefore, dissent.

Mr. Justice Moore and Mr. Justice Day concur in this dissent.