31 Del. Ch. 376 | New York Court of Chancery | 1950
The question is whether the plaintiff is entitled to injunctive relief against the defendant.
Ciconte, the plaintiff, owns a building consisting of seven stores, one-story high and under one roof, on the west side of First Street in the town of Rehoboth, occupied by tenants. A small part of the same building at the southern end is occupied by the plaintiff as a residence in the summer. The lot on which the building stands has a frontage of one hundred feet on First Street and a depth, between parallel lines, of fifty feet, the southern end of which abuts on Wilmington Avenue. The plaintiff’s entire building is ninety-eight feet long by forty feet deep and covers the greater part of the lot. There is, however, a five foot strip of land back of it and on the west side of the lot covered by a concrete pavement, which is used as a private alley by the tenants of the stores, opening into Wilmington Avenue and having a slight slope towards it. Four of the stores, including the one at the north end, have back doors which open on the alley. The floors of the building are of wood and have little, if any, elevation above the concrete alley in the rear.
Shockley, the defendant, owns a lot fifty by one hundred feet fronting on Wilmington Avenue which adjoins the plaintiff’s lot on the west and is designated as No. 31 on the Rehoboth plot.
In 1946 the defendant erected a two-story frame dwelling on the northern end of the lot twenty feet long from east to west and twelve feet deep from north to south which is used in connection with a restaurant on a lot owned by
From the natural contour of the land, the surface water from the defendant’s Wilmington Avenue lot would have run on the plaintiff’s lot. In 1946 or 1947, the defendant made a driveway, between ten and eleven feet wide, of oyster shells
So long as the owner of land leaves it in its natural condition he is not required to take any steps to prevent the flow of surface water from his premises onto the adjoining land. Davis v. Niagara Falls Tower Co., 171 N.Y. 336, 64 N.E. 4, 57 L.R.A. 545, 89 Am.St.Rep. 817; 1 Amer.Jur., 508. He cannot, however, by artificial means lawfully collect and precipitate surface water in increased and unnatural quantities upon the land of his neighbor to his substantial injury or damage. Chorman v. Queen Anne’s R. Co., 3 Pennewill 407, 54 A. 687; Davis v. Niagara Falls Tower Co., supra. When, therefore, a defendant constructs a building on his own land so that the accumulation of rain water and water from melting ice and snow on the roof is discharged upon his neighbor’s property, it may constitute a nuisance. Martin v. Simpson, 6 Allen (Mass.) 102; Melvin v. Richman, 96 Conn. 686, 115 A. 426; Hazeltine v. Edgmand, 35 Kan. 202, 10 P. 544, 57 Ann.Rep. 157; 2 Bouvier's Law Dict., Rawles Third Revision, Nuisance, page 2379. The same rule may apply when water from the roof of the defendant’s building runs down the side of it in considerable quantities and after being deposited on his property runs onto the land of his neighbor. Melin v. Richman, supra. While a piece of land may receive without injury a considerable amount of surface water which gently flows thereon from the upper premises, when it is collected and discharged in mass as a given point
The plaintiff is, therefore, entitled to injunctive relief against the nuisance resulting from the defendant’s mode of constructing his roof.
It seems to be conceded that the defendant’s driveway slightly raised the level of a part of his lot along the plaintiff’s western line; but if there was any increase in the surface water that drained on the latter’s lot, it was so slight that equitable relief will not be granted.
An appropriate order will be entered against the defendant in accordance with this opinion.