Daily Development for Friday, September 12, 2008
by: Patrick A. Randolph, Jr.
Elmer F. Pierson Professor of Law
UMKC School of Law
Of Counsel: Husch Blackwell Sanders
Kansas City, Missouri

WATERS AND WATER LAW; DIVERSION OF WATER; COMMON ENEMY DOCTRINE;  NATURAL WATERCOURSES: Even in the absence of well-defined beds or banks, water that runs through a definite channel and ultimately discharges itself into a tributary in a swampy lowland area enticing to beavers is a “natural watercourse” rather than mere surface water, resulting in the court's application of the “reasonableness” doctrine over the “common enemy” doctrine when a landowner diverts such water from his land.

Bilo v. El Dorado Broadcasting Co., ___ S.W.3d ___ (Ark. Ct. App. 2008).

Bilo owned a rectangular tract of land that historically was a swampy lowland containing willow trees, mud, and beaver dams. Prior to Bilo developing the land in 2004, the topography of the land was such that water flowed from upland areas north of Bilo's tract, through Bilo's tract, and continued south and east through a valley. In 2004, after obtaining a permit from the Corps of Engineers, Bilo placed land fill (consisting of large mounds of dirt and shards of concrete) on his entire tract, which elevated Bilo's tract considerably higher than EDB's neighboring tract and caused 100% of the upland water to flow onto EDB’s land.  Because the water endangered a broadcast tower on EDB's land, EDB sued Bilo, asking the court to order that Bilo either (i) restore the natural water flow, or (ii) install a ditch or culverts to direct and control the water flow as it made its way southward.

Evidence at trial revealed that the area "was a significant drainage area with enough flow to entice beavers to 'do their work' building dams." Specifically, the city director of public works testified that in 2003, the city had removed beaver dams from the Bilo tract because "through that creek bottom there is a flood plain," and "when the creek is obstructed . . . the base flood [level] then rises." Bilo testified that the area in question was a flood plain, a significant drainage area, and was (at least in part) a "wetland." In addition, there was evidence that the city permit authorizing the fill expressly stated that it did not authorize work that could adversely affect adjacent property. Bilo argued that he was merely filling in his property to prevent erosion.
The trial court found that the drainage across Bilo's land was part of a natural watercourse because (among other reasons) (1) the watershed producing the drainage is large in area, (2) beavers used to inhabit the area, and (3) Bilo's land was identified as wetlands by the U.S. Corps of Engineers. In addition, the court found that Bilo's diversion of the water onto EDB's property was unreasonable. Accordingly, the trial court enjoined further fill activities, and Bilo appealed.

On appeal, the primary issued addressed by the court was whether Bilo diverted a "natural watercourse" or "mere surface water." In this situation, the distinction was substantial, because if Bilo was diverting mere surface water, he would be entitled to benefit from the "common enemy doctrine," which provides that a landowner can defend against surface water runoff without incurring liability for damages where no watercourse exists, "unless injury is unnecessarily inflicted upon another which, by reasonable effort and expense, could be avoided." If Bilo was diverting a natural watercourse, he must prove his conduct was reasonable.

The court began by examining Arkansas law on the definition of a watercourse, which has been defined in Arkansas case law as:

"[A] running stream of water; a natural stream, including rivers, creeks, runs and rivulets. There must be a stream, usually flowing in a particular direction, though it need not flow continuously. It may sometimes be dry. It must flow in a definite channel, having a bed and banks, and usually discharges itself into some other stream or body of water. It must be something more than mere surface drainage over the entire face of the tract of land occasioned by unusual freshets or other extraordinary causes."

While the court noted the absence of well-defined bed and banks (explained by a past diversion), it held that when applying the definition quoted above, the trial court did not commit clear error in its finding that the diverted water was a watercourse. Further, evidence showed (1) there was a definite channel, (2) a neighbor constructing a large drainage ditch indicated the water's force, volume and constant flow along this path, (3) the water was referred to as a "creek" and "water way" by the public works director, and (4) the water ultimately discharged itself into a tributary south of the property. These factors demonstrated the water was properly held to be a natural watercourse, not mere surface water flow.

Finally, the court summarily dismissed Bilo's arguments that the trial court was required to provide a legal description of the portion of his land he was enjoined from filling, finding no case law in support of that proposition. Because Bilo did not argue the reasonableness of his conduct, the court's analysis ended and it held for EDB.

A dissenting opinion expressed the view that, "if there had ever been a 'tributary' or 'creek,' it has been obliterated by the development of the area. This is now an urban intersection with roads and man-made culverts." The dissent cited a 1908 Arkansas case involving a lot "in the midst of a populous city," held and owned for building purposes, which an owner has a right to fill up, elevate and build upon without incurring liability to adjacent owners, consistent with public policy favoring "advancement and progress of cities and towns."

Comment: The editor, frankly, is surprised to see a modern case which appears to recognize the undiluted common enemy doctrine.  In many situations, the impact of the doctrine is altered by local regulation, and a number of states have abandoned it in favor of some modified version requiring reasonableness at one stage or another.  But here, although the court appears to acknowledge the doctrine, it quickly finds it inapplicable. 

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