89 Va. Cir. 337
Albemarle Cir. Ct.2014Background
- Plaintiffs sued for declaratory and injunctive relief claiming Albemarle Place’s storm sewer (notably a 72-inch pipe) diverts and concentrates surface water onto Plaintiffs’ property, causing trespass, erosion, and preventing development.
- Trial took place June 3–5, 2014; parties submitted post-trial briefs and the court found material facts largely undisputed.
- Plaintiffs argued the concentrated flow is an "artificial channel" (McCauley/Third Buckingham line) and thus actionable regardless of reasonableness.
- Defendants presented engineering, permitting, and regulatory approvals showing the design detains up to a 10‑year storm, includes an underground detention facility, energy dissipater, riprap, and that the plan was reviewed by county, state and Army Corps reviewers.
- Evidence of present harm: erosion, constraints on Plaintiffs’ planned expansions, and potential future increased erosion; defendants countered that much harm is speculative (e.g., 100‑year storm) and that permits and engineering mitigations limit injury.
- Court found defendants’ design did cause injury but not beyond what was necessary; equitable relief (permanent injunction) would be inappropriate given disproportionate burden and regulatory/feasibility constraints (e.g., critical slopes, high restoration costs).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether channelized flow via the 72" pipe is actionable trespass | The pipe creates an artificial channel concentrating surface water onto Plaintiffs, invoking McCauley/Third Buckingham prohibition | The flow is managed stormwater (surface water/common enemy) with reasonable engineering and permits | Court: The flow constitutes trespass and caused injury, but not beyond what was necessary in design |
| Applicability of modified common‑enemy doctrine vs. artificial channel exception | Third Buckingham bars channelized discharges even if described as reasonable | Defendants: modified common‑enemy rule allows reasonable diversion/development; their design is reasonable and permitted | Court: Third Buckingham not an absolute bar; reasonableness of injury (not merely of improvements) controls; here injury existed but was not excessive |
| Entitlement to injunctive/declaratory relief for continuing trespass | Plaintiffs: injunction appropriate to protect property rights; need not balance equities when real property right violated | Defendants: Plaintiffs failed to prove irreparable harm; injunction would impose disproportionate burden and is infeasible given critical‑slope/zoning constraints | Court: Traditional equitable test applies for trespass tort; permanent injunction denied as disproportionate and impractical |
| Adequacy of plaintiffs' proof of harm and remedy scope | Plaintiffs rely on lost development/opportunity and erosion risk to show injury and need for restoration | Defendants: much harm speculative; regulatory approvals, engineering and bond demonstrate reasonable mitigation; remediation would be disproportionately costly | Court: Some present injury proven (trespass/erosion risk), but plaintiffs’ remedies (restoration) would impose excessive burden; damages/other relief not addressed by injunction, judgment for defendants entered |
Key Cases Cited
- McCauley v. Phillips, 216 Va. 450 (1975) (landowner may not collect surface water into an artificial channel and discharge it concentrated on another)
- Kurpiel v. Hicks, 284 Va. 347 (2012) (physical entry, including flooding, is actionable trespass)
- Mullins v. Greer, 226 Va. 587 (1984) (surface water is a common enemy; diversion permitted if reasonable and in good faith)
- Third Buckingham Community, Inc. v. Anderson, 178 Va. 478 (1941) (collection and concentration of surface water into artificial channel causing substantial injury is unreasonable and actionable)
- Norfolk & W. Ry. v. Carter, 91 Va. 587 (1895) (obstruction or diversion of an accustomed channel to another's injury is actionable)
- Hodges Manor Corp. v. Mayflower Park Corp., 197 Va. 334 (1955) (defendant entered and altered plaintiff’s land and discharged surface water directly; relief appropriate where injury exceeds necessity)
- Levisa Coal Co. v. Consolidation Coal Co., 276 Va. 44 (2008) (violation of real property interest may justify injunction; equity requires balancing when remedy imposes disproportionate harm)
- Norfolk S. Ry. v. E. A. Breeden, Inc., 287 Va. 456 (2014) (discusses injunctive relief for property rights and when balancing of equities may be displaced)