114 N.H. 436 | N.H. | 1974
The main issue in this case is whether the trial court abused its discretion in finding that the defendant had unreasonably graded and paved a parcel of land adjacent to the plaintiffs’ property so as to direct the flow of rain and melting snow toward their buildings and driveway, thus causing damage to them. The plaintiffs brought an action for injunctive relief and damages against the defendant. After a trial by the Court (Bois, J.) with a view, a verdict was rendered in favor of the plaintiffs in the amount of $4,400. The court denied the defendant’s motion to dismiss the action during the course of trial and its motion to set aside the verdict, and reserved and transferred its exceptions thereto.
The plaintiffs are the owners of a parcel of land in Gorham, New Hampshire on which a store, a garage and a gravel driveway are located. In July and August of 1971, the defendant graded and paved a lot adjacent to the plaintiffs’ property to provide parking spaces for its patrons and employees. The plaintiffs introduced considerable evidence that the paving of the adjacent lot substantially increased the amount of rain and melting snow discharged from the lot onto their property and caused damage to their buildings and driveway.
First, there was testimony from a surveyor, Steve Woodward, that the gradation of the pavement caused the diffused surface waters to collect and concentrate into one point of discharge on the plaintiffs’ property and thereafter flow down their driveway into a catch basin at the bottom. The plaintiff Joseph Micucci and a neighbor
The law in New Hampshire has been long established that a property owner may use, manage or control the diffused surface waters (5 R. Clark, Waters and Water Rights § 450.5 (1972)) on his land in any manner so long as it is reasonable in view of his own interest and that of all other persons thereby affected. Franklin v. Durgee, 71 N.H. 186, 187, 51 A. 911 (1901); 5 R. Powell, The Law of Real Property § 731 (P. Rohan ed. 1971, Supp. 1973); Annot., 59 A.L.R.2d 421, § 7 (1958, Supps. 1967 & 1974). The owner’s alteration of the natural or existing runoff patterns is a factor to be considered along with the nature and im
We are satisfied in this case that there is ample evidence to support the trial court’s conclusion that the defendant paved its lot in an unreasonable manner. Although the paving of the lot was a convenience to the bank employees and patrons, it was graded in such a manner as to cause extensive damage to the plaintiffs’ real estate. This damage could have been avoided by designing the gradient to spread the flow of the diffused surface waters and prevent a concentrated discharge. Flanders v. Franklin, 70 N.H. 168, 169, 47 A. 88, 89 (1899). The defendant claims this conclusion is “absurd” on the ground that the paving of the lot did not alter the existing runoff pattern of surface waters because the land had been previously covered by a building. Cf. Hamlin v. Blankenberg, 73 N.H. 258, 60 A. 1010 (1905). We reject this argument because it is undisputed that the defendant altered the grade of the parcel in preparation for laying the pavement and plaintiffs’ neighbor Mrs. Lynch testified that the problems with the runoff and water accumulation commenced shortly after the paving was completed. While it is true that both the pavement and the former building prevented the natural absorption of water into the ground, there was evidence that the alteration in the gradient of the surface greatly increased the quantity of water discharged onto the plaintiffs’ property. See Willston Apartments, Inc. v. Berger, 229 F. Supp. 338 (D. Va. 1964).
There is also sufficient evidence to support an award of $1,400 for the construction of the drainage system to divert the flooding. However, the defendant argues that the award of $3,000 for the increased construction cost resulting from the water damage to the garage is speculative. It points out that Mr. Scarinza admitted that some of the
Defendant’s exceptions overruled in part and sustained in part; remanded.