Water + animosity = punitive damages

Bad fences make bad neighbors, especially if the neighbors start retaliating. Then it escalates.  They lawyer-up and make things even worse.

Greg and Lisa lived next to Tim on large tracts in a suburbanizing area southeast of Kansas City. They talked about building a fence on their common boundary, where a ditch looped from Greg’s and Lisa’s property onto Tim’s for 50 feet, then came back to Greg’s and Lisa’s property.

Tim put up “no trespassing” signs after seeing Greg and his son walking along the property line. “Somebody” shot the sign with a shotgun. Tim built a pond on his property, smoothing and filling out the ditch along the property line, leaving an outlet that would allow water to flow into Tim’s pond. Tim started building a fence, without Greg’s help, but never completed it.

Greg built a berm along the property line for more than 300 feet, a part of it against a section of fence that Tim erected. Tim claimed that the berm unreasonably blocked the natural drainage from Tim’s property, so that about 1.5 acres became marshy, preventing him from building a good fence, mowing or otherwise using the marshy property.

Tim sued Greg and Lisa, asking the court for compensation for damages caused by the construction of the berm and the shooting of the “no trespassing sign,” and for an injunction to have the berm removed. The judge ruled that Tim was not entitled to receive punitive damages relating to the diversion of water, and the jury assessed Greg and Lisa with $7,500 in damages for the diversion of water onto Tim’s property. The jury also assessed $1 in actual damages for Greg and Lisa trespassing by shooting Tim’s sign, also awarding Tim $500 in punitive damages.

Both sides appealed, and the Court of Appeals for the Western District of Missouri could not put an end to the misery, in a June 30, 2009 opinion, Atkinson v. Corson.

The Court of Appeals repeated the “reasonable use” rule of law regarding surface water, which holds that a landowner has  a duty to control surface water in ways that do not needlessly or negligently injure adjoining lands owned by others. Whether a use is reasonable is a question of fact, meaning that the issue can rarely be decided without a trial, if the parties are too stubborn to settle. Once a jury or judge makes a determination of whether the use was reasonable, then an appellate court would not be able to overturn the decision, unless the appeals court found that the judge or jury had made a decision with no evidence to support it. It doesn’t matter what the contrary evidence was: the judge or jury has a right to not believe it.

And that’s what happened. The jury apparently didn’t believe Greg’s testimony.

Greg also argued that Lisa had nothing to do with the whole mess. The point of this argument is that the joint property of husbands and wives cannot be taken to satisfy a judgment against only the husband or the wife. But the appeals court noticed that Greg had not cited any legal authority for the proposition that Lisa’s mere ownership and condoning Greg’s building of the berm removed her from liability, even though there’s quite a bit of case law on the subject. So joint property can be taken to satisfy Tim’s judgment against Greg and Lisa.

Greg and Lisa also claimed that the jury should have received an instruction to find for them unless Tim proved that they were negligent in building the berm, diverting water and causing damages to Tim’s property. Proof of negligence requires a legal argument that the defendant has a legal duty of care owed to the plaintiff, that the defendant breached that duty and that the breach caused damages. Tim had submitted a jury instruction based on the law of reasonable use, which only requires the jury to find that the diversion of the water was unreasonable under all the facts and circumstances, resulting in damages. The appeals court agreed with Tim and let the $7,500 damage award stand, because the Missouri Supreme Court had ruled that, for surface water damages, the reasonable-use rule replaced the old rule of negligence.

As though that weren’t enough pain for Greg and Lisa, Tim successfully argued on appeal that the judge was in error for not allowing the jury to decide on whether to award him punitive damages for the unreasonable diversion of surface water. The appeals court noted that the jury could have found that construction of the berm was maliciously intended to impair the natural flow of the water from Tim’s property, causing it to pool there, rather than run onto Greg’s and Lisa’s property. In addition, the court pointed out that Greg’s “cursing and use of obscene hand gestures” and vandalism of the sign could support the award of punitive damages. The appeals court ordered that a trial be held so that Tim would have a chance to prove that punitive damages should be assessed against Greg.

Lawyers cringe when they get a calls from prospective clients regarding  boundary line issues. The parties are usually so bitter that settlement is difficult. When diversion of surface water is a part of the problem, the clients will end up having to hire engineers as expert witnesses. The jury’s decision will most likely be influenced by which party they like the most, having no way to determine whether either party is being truthful. The engineering testimony will likely be contradictory, inconclusive or too technical for the jury.

The real lesson here is that it’s better to find a way to get along and make friends of neighbors.