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Vol. 2010-05 | May, 2010

Surface Water Intrusion; Reasonable Use Rule

{¶11} Where damage to one’s property is alleged by water run-off created by an adjacent property owner, Ohio has adopted a reasonable-use rule. McGlashan v. Spade Rockledge Terrace Condo Development Corp. (1980), 62 Ohio St.2d 55, syllabus (each possessor is legally privileged to make reasonable use of his land, even though the flow of surface waters is altered thereby and causes some harm to others, and possessor incurs liability only when his harmful interference with the flow of surface water is unreasonable).

{¶12} The Restatement analysis of reasonableness in surface water cases, approved by the Ohio Supreme Court in [McGlashan], is fact-sensitive. Hughes v. Mill Creek Properties, Ltd., Trumbull App. No. 2005-T-0151, 2006-Ohio-7008, ¶26-29 (testimony that flooding only occurred after a defendant in a surface water case commenced operations is sufficient to create a genuine issue of material fact as to whether that defendant’s activities caused the flooding; landowners are competent to testify regarding the past history of flooding on their property).

{¶13} In McGlashan, the Supreme Court indicated that the trier of fact was to apply the Restatement [of Torts] rule of reasonableness in resolving surface water cases. Hughes. Summary judgment is only to be granted in those rare cases where a plaintiff cannot point to some competent evidence to support the elements of his or her case. Id.; see Peters v. Angel’s Path, L.L.C., Erie App. No. E-06-059, 2007-Ohio-7103, ¶33, citing McGlashan (defendant incurs liability only when his harmful interference with the flow of surface water is unreasonable; the reasonableness of an interference is determined by the trier of fact, guided by the rules stated in the [Restatement of Torts]); see, also, Peters at ¶39 (appellants presented prima facie evidence to establish causes of action for private nuisance and trespass; whether defendant’s actions were reasonable, intentional, or negligent are decisions to be made by the trier of fact, not on summary judgment).

{¶16} A continuing tort occurs when the defendant’s tortious activity is ongoing, perpetually creating fresh violations of the plaintiff’s property rights. The damage

caused by each fresh violation is an additional cause of action. Weir v. E. Ohio Gas Co., Mahoning App. No. 01 CA 207, 2003-Ohio-1229, ¶18; Reith v. McGill Smith Punshon, Inc., 163 Ohio.App.3d 709, 2005-Ohio-4852, ¶50 (claim for a continuing trespass may be brought at any time until the claim has ripened into a presumptive right by adverse possession, which takes 21 years).

{¶17} The Ohio Supreme Court recently stated in Sexton v. City of Mason, 117 Ohio.St.3d 275, 2008-Ohio-858, that a continuing trespass occurs when there is some continuing or ongoing allegedly tortious activity attributable to the defendant. A permanent trespass occurs when the defendant’s allegedly tortious act has been fully accomplished, and a “defendant’s ongoing conduct or retention of control is the key to distinguishing a continuing trespass from a permanent trespass.” Id. at ¶45; see, also, Weir at ¶30 (much like a continuous trespass, a continuing nuisance arises when the wrongdoer’s tortious conduct is ongoing, perpetually generating new violations; conversely, a permanent nuisance occurs when the wrongdoer’s tortious act has been completed, but the plaintiff continues to experience injury in the absence of any further activity by the defendant).

Creech v. Brock & Associates Construction, 183 OApp3d 711. (CA12 PREBLE, Decided August 10, 2009)

AUTHOR / EDITOR: J. NORMAN STARK is an Attorney-at-Law, a Registered Architect, (AIA, NCARB) Registered Landscape Architect, Interior Designer, Planner and Senior Appraiser (ASA), admitted to practice law before the Bar of Ohio, the US District Courts, Ohio and Illinois (Central Dist.), the US Court of Appeals, and the United States Supreme Court. He is a Mediator, Arbitrator and Litigator with experience in Business, Construction Law, and Public Works, and with additional experience in Real Estate, Construction Attorney (Legal Project and Crisis Management), and as an Expert Witness (Forensic Architect). His office is in Cleveland, Ohio.