by: Patrick A. Randolph, Jr.
Professor of Law
UMKC School of Law
randolphp@umkc.edu

NUISANCE; WATERS AND WATER RIGHTS: Public agency not liability for continuing nuisance when reforming of stream on its land leads to downstream injuries. Liability limited to action or inaction of agency occuring during two year limitations period.

Bays v. Kent State University, 684 N.E. 2d 1328 (Ohio Ct. Cl. 1997).

Plaintiffs, husband and wife, filed suit against defendant Kent State University ("KSU") claiming KSU was liable for damages to their land under theories of negligence and nuisance. The damage resulted from the City of Munroe Falls' trenching and enlarging of the existing stream located on land upstream of Plaintiffs, including land owned by KSU abutting the north side of Plaintiffs' property. The City had signficantly widened, straightened and relocated the channel, draining a new housing development north of the airport. It then continued with its work through the airport. The court indicated that the evidence showed that the work on the stream draned a large area of airport land that formerly had been "permanent wetlands." The city stopped its work precisely at Plaintiffs' boundary. The stream had been a dry bed most of the time prior to this work. Thereafter, not surprisingly the huge new quantities of water carried in the stream bed caused injury to Plaintiffs. The new, wider and deeper waterway had a significantly different effect upon Plaintiff's property. There was considerable erosion of the stream banks and exposure of bridge posts. Culverts and a bridge were "washed out" and after storms, all sorts of debris and big pieces of plastic would come on to the property from upstream.

According to the court's reconstruction of events, there was no evidence that anyone at KSU had any knowledge of the trenching work until Plaintiff Mrs. Bays brought it to their attention in August 1991. After she notified KSU, a KSU official wrote to Mrs. Bays and requested that she direct her concerns to the city. Plaintiff Mrs. Bays testified that prior to the City's trenching work in August 1991, the stream was completely dry and only flowed with water during and after rain storms.

Civil actions against the State of Ohio permitted by sections 2743.01 to 2743.20 of the Ohio Revised Code must be commenced no later than two years of the date of accrual of the cause of action. Plaintiffs did not file their claim until October 16, 1995. Tthe Court indicated, therefore that it would only consider those portions of Plaintiffs' claim that could be attributed to KSU's acts or omissions occurring from October 16, 1993 onwards. It distinguished authority dealing with "continuing nuisance," wherein there is continuing liability as continuing damages occur due to a nuisance on the defendant's property. The court appears to suggest that this authority might apply in a normal situation, but that there is a bar to continuing liability against the State under the Ohio statute of limitations.

In connection KSU's actions during the period from October, 1993 forward, the Court discussed the reasonable-use rule applied by Ohio courts to resolve surface water disputes. This rule provides that a possessor of land does not have the unqualified privilege to deal with surface water as s/he pleases nor is s/he absolutely prohibited from interfering with the natural flow of surface waters to the detriment of others. Each possessor is legally privileged to make reasonable use of his/her land, even though the flow of surface waters is altered thereby and causes some harm to others. The possessor incurs liability only when s/he unreasonably interferes with the flow of surface water.

The Court concluded that KSU owed no duty to Plaintiffs other than to refrain from exposing them to unreasonable risks of harm in connection with surface water usage. The Court held that KSU's position with regard to Plaintiffs' concerns from October 16, 1993 onwards had been reasonable under the totality of the circumstances involved and rendered judgment in favor of KSU. The court pointed out in its narrative of the facts that Plaintiffs had requested during this period that KSU build retaining ponds on its property, and that KSU never responded in any way, but its summary conclusion of "no negligence" does not discuss why the court saw no issue of "reasonableness" concerning this incident.

Comment 1: This opinion, though in the printed reports, is a single judge's opinion at the trial court level, and therefore is of limited precedential signficance. It is reported primarily for the interesting legal issues presented concerning continuing nuisance and the reasonable use theory and the impact of sovreign immunity statutes.

Comment 2: It beggars the imagination that the city would undertake major excavation work on the University's airport without someone at the University having granted express or implied permission for this to occur. The court's ruling excluded any inquiry into the University's behavior prior to 1993, so there was no further review of the issue. If the University did in fact license the City to come onto it's property to rechannel the stream, then one would assume that the University would have some liability in nuisance if the work, as it appears here, was inconsistent with the "reasonable use" responsbilities of the University (although the City might have some liability as well).

To say that there is no liability, despite continuing and ongoing damages, when the original "nuisance" action occurred prior to the running of a two year of limitations period, is a very generous reading of the statute for the State. Theoretically, of course, every time there is a flood a new nuisance has occurred if the State has done nothing to solve the problem in the meantime. The fact that the court saw nothing actionable in the State's refusal to take some curative action when requested to do so suggests that the court sees, in effect, the retrenching as a fait accompli after the two years have run. It is as if the stream is a "natural condition" in its new countours.

Comment 3: The author has seen some authority on continuing nuisance regarding trespasses, but has not seen a case involving a continuing nuisance claim involving a water rights issue. It would stand to reason, however, that if one creates a condition that will cause damage only when there are high water conditions, and fails to correct that condition the first time high water occurs, one ought to be liable for that unreasonable failure to correct when damage occurs again, even if the subsequent damage occurs substantially later. The exposure to injury for the neighbors is "continuing."

Comment 4: Note that the court does not indicate when the cause of action first accrued. It simply takes into account actions during the two years prior to the filing of suit. It is not really clear whether one should view a nuisance action based upon failure to comply with the "reasonable use" doctrine accruing when a landowner changes the streambed, or when damages result downstream as a result of such changes. If the damages had not occurred, there would have been no breach of the "reasonable use" doctrine and the streambed changes would not have been tortious.

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