Opinion
109154.
Decided July 27, 2006.
Bolger, Hinz Zutt, P.C., By: Harold Hinz, Esq., Claimant's attorney.
Hon. Eliot Spitzer, New York State Attorney General, By: John M. Healey, Assistant Attorney General, Defendant's attorney.
Claimants allege that a continuing nuisance and trespass has been caused by the discharge of collected storm water through the Defendant's drainage culvert onto and across Claimants' property from New York State Highway Route 9D (hereafter Route 9D). Trial on the issue of liability was held on February 2 and 3, 2006. This decision relates only to liability.
The genesis of the storm water discharge problems was, according to the Claim, in or about 1984, when the storm drains, catch basins, pipes and related structures were installed by Defendant along Route 9D, replacing what had primarily been an open ditch system with a closed system. The first instance of storm water problems occurred, however, in September, 2000, when storm water destroyed part of Claimants' parking area and retaining wall. Thereafter, Claimants expended monies to repair the damage, and installed gabion baskets and stone "riprap" to stabilize a ditch created by the discharge.
On June 17, 2001, storm water discharge emanating from a series of storm drains, pipes and catch basins installed and maintained by the New York State Department of Transportation (hereafter DOT), eroded and undermined the gabion structure and protective stone "riprap" on Claimants' property. Claimants assert in the claim that immediately following the June 17, 2001 event they were in contact with the DOT and were assured by DOT personnel that the problem would be satisfactorily resolved. After DOT representatives examined the site and had continued contact with Claimants, and on or about November 15, 2001, it is alleged that DOT notified Claimants it would not undertake remedial or corrective measures, and forwarded a claim form to Claimants.
The original claim in this matter, Claim Number 105432 was filed on January 7, 2002, and thereafter dismissed on or about October 28, 2003 without prejudice to Claimants' seeking permission to serve and file a late claim. The present claim was served on April 2, 2004 and filed on April 7, 2004, pursuant to a motion for late claim relief granted on March 30, 2004.
Based upon a Notice to Admit served upon Defendant, and attested to on the record at trial, at all relevant times Claimants were and are the owners of real property situated at 563 Route 9D, Garrison New York. The property is improved by a single family residence, and is directly contiguous to and lies downhill from Route 9D, a highway owned and maintained by the State of New York. A series of pipes and catch basins have been placed by the State between plan stations 56+00 and 61+50 on the easterly side of Route 9D to collect storm water, and discharge such storm water through a culvert running water underneath Route 9D at plan station 61+50 onto premises that are contiguous to Claimants' property, and then through Claimants' property to a marsh adjacent to the Hudson River. There was no testimony elicited to establish which — if any — of the plans submitted in evidencep were referred to by the plan station numbers. No easements, licenses or other instruments are recorded in the Putnam County Clerk's Office authorizing such storm water discharge.
The Notice to Admit was not filed in the Clerk's Office as required. 22 NYCRR § 206.5(c).
Referred to briefly by Defendant's expert, Exhibits A and B are entitled record plans. Claimants' witnesses did not refer to these at all.
By means of a newly minted Eighth Affirmative Defense, served shortly before trial pursuant to stipulation, Defendant asserts that it possessed a prescriptive easement to drain water through its culvert and onto Claimants' property. [ See Amended Verified Answer].
Claimants purchased the property on April 27, 2000 from their former landlords, Mr. and Mrs. Patterson. [Exhibit 2]. Claimants had rented the property for a period of one (1) year prior to the purchase pursuant to a lease agreement, having moved in the first week of April 1999. [Exhibit 1].
Route 9D runs in a north/south direction. Claimants' property is on the westerly side of the highway, and "slope[s] down toward the Hudson River." The terrain on the easterly side across from Claimants' property is hilly and rugged. Directly opposite Claimants' driveway on the easterly side of Route 9D is a single family residence. A little further south there are one or two additional houses. To the north on the easterly side of Route 9D is the entrance to a nature preserve. Mr. Zutt explained at trial that "almost directly across from our driveway and just south of it a little bit is a highway catch basin that collects storm water, and continuing south along that stretch of Route 9D are a series of additional catch basins, which are interconnected and which collects storm water and discharge it through a culvert onto my immediate neighbor's property, and then the discharge enters our property very shortly thereafter." [T-18-19]. He estimated that the culvert is approximately 30 to 40 feet from his property line. The water goes through the culvert, discharging water the 30 to 40 feet across his neighbor's property, then continuing downhill through a ditch on Claimants' property. The culvert itself was described in later testimony as a 2 x 2 box culvert, and identified in a photograph by Mr. Zutt. [Exhibit 5]. Mr. Zutt described the ditch as a "fairly rugged ditch of substantial size and depth and width", composed of dirt and rock. [T-21]. Mr. Zutt affirmed that he had not given permission to the State of New York to discharge water through its culvert across his property.
Quotations are to the transcript [T-] unless otherwise indicated. Here, [T-17].
In September 2000 — about six months after they had purchased the property — Claimants returned from a weekend trip to find a large hole in their parking area. A retaining wall constructed partially of railroad ties that had supported their parking area had been apparently washed out by water after a storm. When Mr. Zutt examined his property he observed that there was excess water runoff that had left the ditch area and traversed his property, through to their parking area. He explained that there was a clear path showing that the water had come through in the direction described because of the grass and the weeds on the ground, and the leaves and the debris carried by the storm water.
As a result of this storm event, Claimants installed a gabion wall, described as a series of steel mesh type rectangular shaped baskets, each six feet long by three feet square, filled with rocks, at a location recommended by the engineer and architect they consulted, Bruce Donohue. They were placed in closer proximity to the house so they could be installed and anchored better; as opposed to being installed on the ditch itself. A photograph taken while facing in a southwesterly direction downhill showing part of the gabion wall, shows the rocky wall covered in steel mesh, and a ditch-like area to the left side. [Exhibit 13]. Were water running, Mr. Zutt explained, it would be running away and downhill from where the photographer stood. [ See id.]. The gabions were designed to ensure that the storm water did not flow out of the ditch and toward the house, thus there was backfill placed against the portion of the gabions where the water would flow, and it was compacted. "Riprap" or more broken stone material "approximately four . . . [to] eight inches in diameter . . . [was] installed both below the outfall portion of the gabion where the storm water left that area, and also above it on the . . . upper side of the ditch, in an effort to ensure that the walls of the ditch didn't further erode . . . [and on the side of the ditch where water had jumped out of the ditch] we had some fill material, crude, rock and stone and whatnot, brought in to try to build up that side to ensure that the water didn't escape there again." [T-33].
On June 17, 2001 a "significant storm . . . severely eroded the . . . ditch adjacent to the gabions, and also eroded the sides of the . . . ditch above the gabions and eroded the outfall area and riprap below the gabions and washed away a lot of the material we had put in as well as the land on which the gabions were built." [T-33-34]. Mr. Zutt took photographs of the water during the storm as it came out of the culvert [ see Exhibit 5], and followed its path down toward the Hudson River. The photographs show what would appear to be a fast moving stream of water, commencing in the ditch area directly above the gabion wall [Exhibit 6], proceeding down toward the gabion wall [Exhibit 7], and then making a sharp turn to run seemingly parallel to the gabion wall. [Exhibit 8]. After the water leaves the gabion structure area — indeed the wall ends, and rough stone riprap begins — an area described by Mr. Zutt as the "outfall" begins, as the water continues downhill. [Exhibit 9; T-39].
A view downstream from the end of the gabion structure and looking at the outfall area shows what appears to be a wide stream of water moving in an s-pattern downhill. [Exhibit 10]. Further downhill the water continues rushing [Exhibit 11] to a ledge area, where "there's a fairly steep drop . . . where the storm water was descending over that drop and continuing toward the [Hudson] River." [Exhibit 12; T-40].
Mr. Zutt also took photographs a day or two after the storm event. The ditch area immediately adjacent to the gabion structure shows displaced "stone riprap and other eroded material in the foreground." [T-41; Exhibit 13]. The washing away of the outfall area stone riprap is more clearly shown in Exhibits 14 and 15, where the stone has been washed to the sides and piled up by the force of the water. Further upstream, above the gabions and closer to Route 9D, a dirt ditch area can be seen. [Exhibit 16].
By way of contrast, one of the photographs taken a day or two after the June 2001 storm [Exhibit 17] shows the same area photographed during the storm. [Exhibits 6 and 7]. They depict the ditch area above the gabion structure before the water turns parallel to it. The photograph taken after the event shows a calm but apparently wider flow of water [Exhibit 7] as opposed to a rushing but apparently narrower flow during the storm. [Exhibit 6].
A series of photographs taken of the ditch area in September 1998 were admitted in evidence. [Exhibit 3A]. These photographs were taken when Claimants visited the property with a friend, Mr. Randall, who took the photographs. The same area of the ditch shown in Exhibits 6 and 17 is shown in Exhibit 3A. The 1998 ditch appears somewhat narrower, and Mr. Zutt testified that there was no reinforcement of the left hand side of the ditch in 1998 as shown in the earlier photograph.
On cross-examination, Mr. Zutt acknowledged that in October 1998 Mr. Randall advised him that there was a watercourse issuing from the culvert on the southern edge of his property along 9D, in connection with issues Mr. Zutt had concerning placement of any septic fields. Prior to the improvements made after the September 2000 storm, the ditch which that storm overran was an open, dirt ditch. When the water overflowed, it came over the northern bank of the drainage ditch in an area east of Claimants' residence. After the improvements, some dirt was removed from the area adjacent to where the water flowed — that is, the walls of the ditch — in order to install the gabions. Fill was brought to "that portion of the channel where the water had escaped the ditch and run through our parking lot" Mr. Zutt explained. [T-132]. No fill was placed in the ditch proper, but the banks were built up in the area where the water had jumped the ditch in September 2000.
Jeanne Patterson, who sold the property to Claimants, and remained their immediate adjacent neighbor, testified briefly. When she and her husband purchased the property in 1986, the ditch was "[p]erhaps 12 to 18 inches in width and the depth of perhaps up to your ankle." [T-138]. The ditch "started at the top of Route 9D" and moved generally east, "[d]own into the swamp and into the Hudson River." [T-139]. When the property was sold to Claimants, the ditch was "slightly" larger, by "perhaps a few inches either dimension." [T-139]. During the entire time the Pattersons had owned the Claimants' property, there had been no extraordinary storm runoffs.
In September 2000, when Ms. Patterson went to feed the Claimants' pets since they were away for the weekend, she saw that there was a huge hole in the parking area, and the retaining wall had collapsed. She was concerned that their car would be lost, so she called Claimants to find out where their car keys were kept, so she could move the car. The storm had already passed, so she did not see any water either in or out of the ditch. She did observe, however, that the ditch was considerably wider from when the property had changed hands in 2000.
On cross-examination she confirmed that her husband would clean debris out of the "stream" that ran through the property fairly regularly, including cleaning downed branches. [T-144]. Presumably, she was referring to the ditch. She also acknowledged that during her 2003 deposition she had indicated that the water had left the channel and flowed toward the house during the Patterson's ownership of the property ". . . with a heavy rain storm or snow . . .", [T-149], but she had also indicated that there were no flooding problems.
Bruce Donohue, a "landscape architect ecologist", testified as a certified professional in erosion and sedimentation control. [T-153]. He first visited the Claimants' property not too long after the September 2000 storm event, because the gully in the driveway area was still there. At the time he was consulted, two issues were presented for resolution as he saw it. "One was how to restore their driveway and . . . retaining wall in such a manner that it would serve their purposes for their vehicular access and not cause future drainage problems. And the other was how to confine the . . . water in its . . . low flow water course, which carried the water to the south of the residence." [T-159]. It was he who recommended the installation of a line of gabions, which he described in essentially the same manner as did Mr. Zutt.
As part of his investigation of the site, he followed the water ditch up toward 9D, and was able to see the water culvert carrying the water under the road. He found that "as a water course . . it begins essentially at the discharge of the culvert . . . There is no apparent upstream . . . east of [the] Route 9[D] segment of the water course." [T-160].
Mr. Donohue explained that a "water course is a defined channel along which water flows perennially or periodically with . . . an easily readily discernable bed and banks that are distinct from the unconsolidated soil that are on either side of the water course." [T-163]. A "natural" water course would be one formed in nature, without man's intervention. It was his opinion that the watercourse on the Claimants' property was not formed only by nature, but was, rather, man made.
In the area immediately around the culvert, no barriers or other man made structures had been built to attempt control of erosion. The culvert itself was big enough that Mr. Donohue could fit in it, were he not "claustrophobic." [T-191]. "Within 20 feet of emerging from the culvert the discharge had very deeply incised itself into the ground approximately three feet." [T-180].
Mr. Donohue indicated that as the water goes down the ditch — as with any moving water — it wants to move downhill along the path of least resistance. On the south bank of the ditch there is a great deal of resistance because of bedrock. On the north bank, however, there was "unconsolidated material, earth. Because the bedrock generally slopes from high to low in a northwest direction, that is the general direction that the water wants to flow. The channel that it's in . . . has a more directly western orientation. This means that the water is trying to flow across the slope of the bedrock. In trying to do that, it's confined on the bottom on the . . . [south] side from erosion. It can't cut a new channelway. It can only cut a channel — increase its channel, move its channel in a downhill direction to the north, and this is what it's doing and this is why it jumped its banks in the first place, and it is on . . . [the north] side that we reinforced with the gabions." [T-182].The Claimants' house is off the north side of the bank where the gabions were placed.
On cross-examination, he reiterated that he "saw no indication that there ever had been a natural water channel between the culvert discharge and the stream to the north of the property." [T-190]. He acknowledged that water coming out of the culvert in 1928 would indeed follow the path of least resistance, however he indicated that that path was not necessarily straight down the hill, or even in the northwesterly direction. He explained: "if the water were to have exited the culvert [in 1928] and run in a northwesterly direction, there would be some indication of there being a natural channel there dating from sometime in the past." [T-195].
One significant reason why there was no indication of a natural channel in the area, he opined, was because there were trees that could be dated anywhere from 80 to 100 years old, as well as the stumps of trees that were even older before their removal from the site, still present in the area. Moreover, although he agreed that were water to run down toward a tree it would thus be meeting resistance, and would run around the tree and the root system, he also said that water running in the direction of the trees since 1928 would likely have undermined them, or caused them to fall over. He saw no evidence that the water flowed in the direction of the old trees above the house, because either the trees were still standing, or substantial stumps were still visible in the ground, nor did he see such evidence below. [ See Exhibit NN].
Although he thought it likely that there had been a certain amount of grading between the house and the street done to Mr. Zutt's property during initial construction of the residence, he could not say more specifically when any site preparation was done. He agreed that there likely was some fill put in and some cutting done to create the flat parking area on an otherwise sloping site, and that the flatness would affect the water's path of least resistance. He also agreed that if water ran northwest after the house was built, it would also have done so naturally before the house was built.
He explained further that as running water creates banks out of the dirt over time, through erosion the dirt ultimately gets washed away and reveals bedrock. Once the bedrock is revealed, the direction of the water can change because ". . . the bedrock becomes the controlling factor in the direction that the stream wants to move. In this case, the water was flowing in a westerly direction. It's come down against the bedrock, which is sloped in a northwesterly direction . . . Not necessarily the line of flow. Just forcing the stream itself in that direction." [T-206]. When the water jumped the channel in September 2000 it ran northwesterly in the direction of the Claimants' residence.
Roger Griemsmann, the Resident Maintenance Engineer for Putnam and Southern Dutchess Counties for the DOT, testified briefly. He said he was familiar with the culvert placed by the State of New York on the west side of Route 9D that discharges water onto Claimants' neighbors' property, and further onto Claimants' property. He indicated that no other changes had been made to Route 9D since 1984 within a mile of the Claimants' property that would affect drainage through the culvert located on the west side of Route 9D.
On cross-examination Mr. Griemsmann indicated that Route 9D had been repaved in the "area" of "1999/2000." He said that repaving Route 9D "shouldn't" change any run-off patterns of the water going into the culverts along and under the road. He said that two or three catch basins and pipes on the east side of Route 9D drain through the applicable culvert. He confirmed that the culvert is underneath Route 9D.
Nicholas Pucino, the Defendant's engineering expert, testified at length. Mr. Pucino has a significant history of employment with the DOT as a civil engineer with hands on experience in all phases of highway design and construction, and in drainage design and flooding issues related to such design and construction. [ See Exhibit P]. He retired from state service in 1991 and has "investigated . . . a number of cases involving primarily major flood type of situations."
[T-243].His investigations and research in connection with this claim were to attempt to identify the possible causes as to why the water jumped the channel near the Zutt property or through the Zutt property in September 2000.
Reviewing the construction plans for the construction of Route 9D, Mr. Pucino said that where the box culvert at issue now was placed in 1928, is in the same area that a small culvert was located before Route 9D was even built. [Exhibit A]. He said there are three (3) culverts shown on the plans. There is a little culvert furthest to the north that was there before the 1928 construction, and then just south by a "matter of a few feet" of the little culvert is the culvert at issue. [T-266]. A third culvert was designed, but the "as built" indications from the plans show that the third culvert was not constructed.
Mr. Pucino explained that designs may propose certain features, but once field conditions are examined it may turn out to be better to place a feature — such as a culvert — in a different location "to better line up with the natural topography and where the actual drainage is. In this case there was a culvert there. So, it made sense to be closer to that culvert with the new culvert." [T-267]. He opined that the original culvert that existed prior to 1928 was placed where it was because of "some natural source of flow across whatever it was, a wagon trail or whatever else it was, but certainly they were bringing water across that roadway of some sort, even before the 1928 construction." [T-267]. No foundation for this opinion, based upon testimony concerning contour maps, for example, was offered.
He also opined that the culvert built pursuant to the as built plans and shown thereon is the same culvert that discharges across the neighbor's property on to Claimants' property, and it has not been modified or disturbed. The "inlet", he said, has been "changed somewhat with the 1984 contract, but that's the same old concrete box culvert." [T-267].
Mr. Pucino described the current drainage conditions. He said, "going southerly from the 2 x 2 box culvert starting at the inlet end of that culvert there is a catch basin built over the inlet of that culvert, and there is a run of 18 inch pipe . . . running southerly and then it's picked up by one or two catch basins and then that storm sewer system is continuous for approximately 540 feet south along the east side of 9D to another catch basin, but that's also a field inlet because that picks up some a little ditch that runs down the mountain towards the highway at that point . . . and that's . . . the drainage that was installed in 1984." [T-268].
This 1984 work ". . . retained the drainage pattern that existed at least since 1928 . . ." [Exhibit B; T-269]. There "is a mountainside to the east of [Route] 9D, which leads water from some distance, probably . . . 1,000 feet or so . . . that gets collected along Route 9D and brought somewhat northerly to the culvert. There's also a natural draw right opposite the culvert, which funnels some water directly into the inlet, but now through the catch basin where the inlet to the box culvert is." [T-271]. By "draw", Mr. Pucino explained, he meant a "mini valley or saddle . . . sort of a little hollow." [ ibid.]. A photograph depicting the eastern side of Route 9D shows an area "a little north of the culvert", including what appears to be a gradually steepening hill, bisected by a lower area. [T-272; Exhibit CC]. Notably, a residence with a driveway, and a stone wall adjacent to the driveway with a six-inch corrugated pipe protruding that drains water through the stone wall, is also shown.
An additional aerial photograph taken of the area in 1994 shows the location of Claimants' house vis-à-vis Route 9D, and the culvert, and incorporates, according to Mr. Pucino, the "area that generally drains" down toward the Hudson River. [Exhibit E; T-275]. Where the culvert lies underneath Route 9D was marked by the witness in orange marker. [ See Exhibit E]. According to the location marked, if the culvert were to be followed in a straight line across the road down toward the Claimants' property that straight line would intersect with Claimants' residence.
In 1984, a new drainage system was installed on the eastern side of Route 9D. Underground piping replaced the ditch that had run along the east side of Route 9D. Water was now carried to the catch basin across from Claimants' property in an 18 inch pipe along the easterly side of the road. The pipe picked up water from a field inlet and another catch basin approximately 540 feet south of the Claimants' property. Mr. Pucino opined, that from a safety standpoint, it made sense to eliminate an open ditch and replace it with pipes and catch basins at strategic locations. Additional development along the east side of the road, creating driveways and curbs along the way, allowed the water to be brought north by eliminating the ditch, and placing an 18 inch pipe with catch basins at strategic locations to pick up water carried by the ditch as well as the water that came in from the east from these developed properties. The catch basins and the pipe carry the water north, and connect to the inlet of the 2 x 2 box culvert.
Mr. Pucino indicated that theoretically, a ditch had a greater water carrying capacity than an 18 inch corrugated metal pipe, but said ". . . there was not really a capacity problem anyway . . ." [T-283]. He opined that the pipes did not increase the volume of water coming out of the culvert, because the drainage area remained the same. The drainage flow would be drawing from the same contours, and from everything to the easterly side of 9D, including the small residential development. ". . . [E]very drop of water that came to the highway got carried to this 2 x 2 box culvert, and that got carried . . . [i]nitially, . . . [by] a ditch. Later in a pipe." [T-284]. The flow through a pipe would be faster, he said, but the volume is the same.
Mr. Pucino opined that the reasons why the water came over the northern bank of the ditch in September 2000 involved several factors. First, prior to the events described in the claim, was Hurricane Floyd "which probably caused flooding and damage to the channel itself." [T-286]. The channel is "on a pretty steep downgrade . . ., and not very deep because of the rock bottom." [T-286]. The water coming from the culvert would want to follow the west and north contour of the rock. Once the water left the highway culvert the natural tendency would be for water to want to go northwest. He said the water would "stay pretty straight for about 50 feet or so, but then it would sort of want to go northwest." [T-287].
In other testimony, September 1999 was pinpointed as the time of that storm.
Thereafter, the water would be confronted in September 2000 by the driveway and parking area to the south of the residence, creating ". . . a somewhat artificial bend in the stream, like a little hump to the north" as well as some alteration to the channel "by someone working in that channel on the Zutt property to confine it to the immediate southerly property line, and . . . to make a little hook, which is what's shown in the aerial photograph [Exhibit E] . . . [a] dark area showing a quick little bend . . . away from the garage area, and this artificial alteration of what would be a natural flow pattern once it left the highway right of way . . ." [T-287]. He said "that nature wanted to go back to where it believed it should have been . . . [moving northwest]. [C]ontributing to that would more than likely have been debris in the channel itself . . . since the channel is probably somewhere near its capacity . . . if brush got in it then it would make it easier to jump the banks." [T-286-287]. Mr. Pucino thought that the construction of the Zutt property in the 1960's and the construction on property to the south at some unspecified time, in addition to debris, might have changed things, while noting that there had been no highway alterations since 1986. By way of explanation, Mr. Pucino said that water emanating from the culvert would not "run due west parallel to the property line or bend around the neighbor's driveway and parking lot. It would want to go in a northwest direction . . . [because] the bedrock runs that way." [T-289].
Mr. Pucino opined that the use of the waterway for the drainage from upland, and from the highway itself, conformed to good and accepted highway practice in 1928 and 1984. He explained that when the 1984 project was undertaken, it was as a rehabilitation of an existing highway. The policy and practice of the time was to maintain the original drainage pattern that existed, so as not to alter the normal water patterns. The pattern of directing water toward the culvert and the outlet channel was preserved because it was consistent with the policy. Moreover, "in the absence of any information or indication that . . . [the] channel created any problems downstream, the designers would properly retain . . . [the channel] and utilize that because it can be properly said to be a stream with bed and banks . . . It's a well defined channel. It's not just a . . . grassy area where once in a while water goes through. Clearly something that had been cut through there for many years . . ." [T-290].
Mr. Pucino estimated that he had driven by the site perhaps ten times, and had walked the property twice. He observed the first 50 feet or so where the water came out of the culvert on April 15, 2003, as well as the entire length of the channel. He thought that the first 50 feet or so were "pretty stable and pretty natural." [T-292] He estimated that the culvert was approximately 250 feet from the front door of Claimants' residence.
On cross-examination, Mr. Pucino reiterated that the channel created across the Zutt property is ". . . not stable because it's being forced to go where nature wouldn't normally take it."[T-310-311]. He agreed, however, that had those gabions and other features not been placed there, the water could ultimately run toward the house.
Mr. Pucino noted that the State improved its culvert somewhat by putting stone at the "media outlet of the culvert" to prevent erosion at the outlet, but "that's about all." He did not explain when any of these improvements might have been made, or how such measures would help prevent erosion. Mr. Pucino could not say how wide the channel — or ditch — was from one year to the next. He acknowledged that if the channel were not stabilized "by nature" erosion would continue and would more likely widen the channel — as opposed to deepen it — given the bedrock base. He also agreed that absent some change to the channel, the water would likely travel in a northwest direction toward the house area, and more specifically, the parking area, because "that's where the bedrock is". [T-322]. He thought that given "the topography [the water would want] to head northwest — not hug the property line — it's pretty much a fairly straight line for some time, and then make a really sharp detour around the . . . garage area." [T-322]. Mr. Pucino never walked on the Zutt property below the residence toward the northwest, one of the places where Mr. Donohue had indicated that he saw no signs of a natural stream channel.
In rebuttal to Mr. Pucino's testimony concerning the volume of water versus the rate of run-off associated with that volume of water relative to open or closed drainage systems, Claimants called Jeffrey Contelmo, a professional engineer involved in the design of roadways and roadway improvements along with their related drainage systems, to testify. He said that "the volume of water, assuming there was not drastic changes to the contributing drainage area, . . . . may be the same, but the rate of run-off could change going from a[n]. . . open system to a closed system. In an open system, there are two issues which come to mind technically. The first is the open system of a vegetated swale, which existed prior to 1984, would be one which would have the tendency to slow storm water down and in doing so that reduces what we as engineers call time of concentration or the ability of run-off to concentrate quickly. That particular phenomena would yield a lower rate of discharge of storm water as opposed to a closed pipe system, which has a smoother bottom for the storm water to run along allowing it to build up quickly and become a greater rate of flow . . ." [T-365-366]. It is "velocity of flow" rather than volume that would be the concern when ". . . looking at the capacity of a conveyance or drainage system and you're looking at the impacts of that drainage system . . . on the erosion downstream . . ." [T-367]. Although the same volume of water would enter the open system and the closed system, when it entered through the closed system the water would travel more rapidly into the catch basin and the culvert, thus leaving the culvert at a higher velocity and a higher rate of flow causing more erosion. [T-367].
On cross-examination, Mr. Contelmo acknowledged that his testimony concerned general principles about the two drainage systems, and he had not made any calculations in order to render that testimony. He reiterated that volume versus rate of flow are two completely different engineering issues.
Mr. Pucino then testified in sur-rebuttal to clarify what he meant by the testimony that the volume of the water in the pipes and the ditch were the same, and conceded that by using that term he meant only the amount of water. He also agreed that the water would travel at a greater rate of speed in the closed system. He was not asked, however, about the relationship between volume and speed and the rate of erosion during this portion of his testimony. Notably, he had testified earlier on cross-examination that slower water creates less erosion than faster water.
No other witnesses testified.
DISCUSSION AND CONCLUSION
Trespass is generally defined as the unlawful and intentional invasion of another's property. See Black's Law Dictionary 1347 (5th ed. 1979). A continuing trespass is one ". . . giving rise to successive causes of action, barred only by the expiration of sufficient time to create an easement by prescription . . . (citations omitted)." Vinciguerra v State of New York, 262 AD2d 743 (3d Dept 1999); see also Stewart v State of New York, 248 AD2d 761 (3d Dept 1998). In any event, the collection of storm water by a series of pipes and catch basins, and the discharge of storm water onto Claimants' property, may constitute a trespass. See Storch v Town of Cornwall, 294 AD2d 426, 427 (2d Dept 2002); Dellaportas v County of Putnam, 240 AD2d 358 (2d Dept 1997); M.C.D. Carbone, Inc. v Town of Bedford, 98 AD2d 714 (2d Dept 1983), appeal denied, 61 NY2d 605 (1984).
The elements of nuisance are ". . . (1) an interference substantial in nature, (2) intentional in origin, (3) unreasonable in character, (4) with a person's property right to use and enjoy land, (5) caused by another's conduct in acting or failure to act . . . (citations omitted)." Copart Inds. v Consolidated Edison Co. of NY, 41 NY2d 564, 570 (1977); see Mangusi v Town of Mount Pleasant , 19 AD3d 656 (2d Dept 2005).
There is no dispute that the box culvert at issue is intended to discharge water draining from the eastern side of Route 9D, through the channel that crosses Claimants' neighbors' property, and ultimately down the channel traversing Claimants' property. There is also no dispute that no easement of record allows this invasion, or that water has continually flowed down the same channel since before Claimants purchased the property. This is not a highway design case. See Kerhonkson Lodge v State of New York, 4 AD2d 575, 578 (3d Dept 1957). If it were, the only evidence pertaining to the cause of action would be that the State's design for drainage was in keeping with the standards of the day and there is no evidence that such design was based, somehow, on inadequate study.
Claim improperly dismissed alleging that State made drainage changes increasing flow of water onto private landowners' land. Simply because drainage changes may have been made in accord with good engineering practice does not insulate State from liability.
What this case involves, however, is consideration of what duty the State owes its neighbors. It would appear to be simply unfair for the State to willy nilly discharge water across private land without permission, and without any responsibility for assuring that water it sends across private property does not wreak havoc to anything in its path.
Nicholas Pucino, a veteran DOT engineer of considerable depth of experience, opined that the culvert installed in 1928 was installed at that location most likely because water flowed toward this natural hollow from the mountain, down toward the Hudson River. This opinion, however, was not based upon any foundation laid: he did not testify using contour maps for example, or otherwise explain the basis for it. He also opined that there was not much difference between the open ditch system, and the system of catch basins and pipes installed in 1984, in terms of the volume of water, but then conceded, that water would move more quickly through pipes, and that faster moving water causes more erosion.
Significantly, although both experts testified that the exposed bedrock tended to direct water in a northwesterly direction toward the house, and would continue to do so, only Mr. Donohue credibly explained that it was the erosion of the soil above the bedrock caused by the regular water flow down the channel that created that directional urge. Based on his more thorough investigation of the property — including the presence of older tree stumps — Mr. Donohue concluded that the watercourse did not naturally go in that direction previously. Because of the increased flow from the culvert, and the erosion such flow caused now exposing the bedrock, the channel was and is moving more northwesterly.
It is well established that although an upland owner is not generally liable to a lowland owner for an increased flow of surface water resulting from re-grading or general improvements to his property, he may be liable if he collects storm water by means of pipes or ditches and discharges it upon neighboring property causing damage. Kossoff v Rathgeb-Walsh, 3 NY2d 583, 588 (1958); see also Buffalo Sewer Auth. v Town of Cheektowaga, 20 NY2d 47, 49 (1967); Dellaportas v County of Putnam, supra; M.C.D. Carbone, Inc. v Town of Bedford, supra; Kerhonkson Lodge v State of New York, supra; Musumeci v State of New York, 43 AD2d 288 (4th Dept 1974), appeal denied, 34 NY2d 517 (1974). Moreover, if collected storm water is discharged into an already existing natural watercourse, liability will nonetheless attach if the resulting flow of water overburdens the receiving channel. See Buffalo Sewer Auth. v Town of Cheektowaga, supra, at 52; Noonan v City of Albany, 79 NY 470, 477 (1880). Thus regardless of whether the discharge of water through the State's culvert was to a natural watercourse, or one created only as a result of man's intervention, if the resulting flow overburdened the channel then the State may be liable.
"Under the common law adopted in this State, either proprietor can improve his land according to his own desire in any manner to which the land is suited, without being liable to the abutting owner for change in the flowage of the surface water provided that he does not resort to drains, pipes or ditches . . . Both [the upper and lower landowners] have equal rights to improve their properties, come what may to the surface water, provided, of course, that the improvements are made in good faith to fit the property to some rational use to which it is adapted, and that the water is not drained into the other property by means of pipes or ditches . . ." Kossoff v Rathgeb-Walsh, supra, 588-590.
The essence of trespass is the invasion of a person's interest in the exclusive possession of land. See Copart Inds. v Consolidated Edison Co. of NY, supra, at 570; Zimmerman v Carmack, 292 AD2d 601, 602 (2d Dept 2002). The fact that the water first discharges onto a neighbor's property is of no moment, since the "chain of responsibility" for damage to Claimants' property is directly traced to Defendant's highway drainage. See Keller v State of New York, 19 Misc 2d 794, 800 (Ct Cl 1959).
The discharge of the water onto the Claimants' property here was trespass in 1928, when the culvert was installed, and it was trespass in 1984, when catch basins and pipes replaced the old open ditch system, and clearly increased the speed of any discharged water. It is a continuing trespass and nuisance through the date of accrual of this claim on June 17, 2001. If the designated trespasser has acquired an easement, however, an action for trespass may not be maintained. Kaplan v Incorporated Vil. of Lynbrook , 12 AD3d 410 , 412 (2d Dept 2004).
As noted, no easement of record tells prospective landowners that water from the highway and the hillside above will discharge from the State's culvert onto adjoining lands.
An easement by prescription is established when by clear and convincing evidence the proponent shows that the prescriptive use was adverse, open and notorious, continuous and uninterrupted for at least ten (10) years. Civil Practice Law and Rules § 212(a); Real Property Actions and Proceedings Law § 501; Caswell v Bisnett, 50 AD2d 672 (3d Dept 1975); Vinciguerra v State of New York, 262 AD2d 743, 745 (3d Dept 1999). Claimants argue that because Defendant did not offer proof of the dimensions of the asserted easement, or its specific location, for the ten (10) year prescriptive period prior to the accrual of the claim the State has not established by clear and convincing evidence that such a prescriptive right exists. "While an easement for drainage of surface water may be acquired by prescription, as by the maintenance of a ditch for that purpose for the requisite period under a claim of right, still the mere fact that surface water has flowed, even from time immemorial, from the land of an upper owner across those of a lower owner, standing alone, with no other facts shown, would hardly give rise to such an easement . . . (citations omitted)." Town of Hamburg v Gervasi, 269 AD 394 (4th Dept 1945). The Court agrees.
The culvert itself was open and obvious, and could be seen from both Claimants' and the neighbors' property. As noted above, however, there was limited testimony concerning the dimensions of the drainage ditch emanating from the culvert as it passed through Claimants' property. When Mrs. Patterson and her husband purchased the property in 1986 the channel was approximately twelve (12) to eighteen (18) inches wide and ankle deep. She indicated that when the property was sold to Claimants in April 2000, the dimensions had changed somewhat by "a couple of inches" in each dimension. Thus in 1991 — the beginning of the ten (10) year prescriptive period based upon the accrual date, there is no way of telling what dimensions such an easement would have. Clearly, based upon the testimonial and photographic evidence, the channel as it existed at the time of accrual of the claim in June 2001 was substantially larger than it was in 1998 when Claimants first walked the property. No witnesses, however, attested to its dimensions during the salient periods. By all accounts because the flow of water could be greater or smaller depending on the weather conditions and without maintenance efforts, the channel became deeper and wider, and will continue to widen, based upon the credited testimony of Mr. Donohue. Defendant has not established a prescriptive easement by clear and convincing evidence.
Here, the State altered drainage conditions by the use of pipes and catch basins, thus increasing the velocity of any water collected, and increasing the erosion potential of any water discharged. On this record, the State did nothing to improve the culvert through which the water would have to drain, or to assure that the channel emanating from the culvert was maintained free of debris, nor did it include erosion control measures. The State has done nothing to maintain the limited width or depth of the flow, or to avoid damage or potential damage to Claimants' property, and is solely responsible for the damage to Claimants' property as a result of the overflow of the water channel through the property on June 17, 2001.
All motions reserved on at the time of trial are hereby denied.
Trial on the issue of damages will be held as soon as is practicable. Let interlocutory judgment be entered.