The issue here is whether a driveway could be built over a drainage easement. This is pretty dry stuff but illustrates the value of a particular statute and the lack of value of a particular rule.
A subdivision plat showed several drainage easements. Beeseley, an adjoining landowner, bought property burdened by one of them, located between two of the subdivision’s lots, where a ravine drained water from his property into a creek. He built a culvert and driveway over this property. Smith, who owned the subdivision lot next to this, sued for trespass, nuisance, and unlawful alteration of a watercourse (48-3613), requesting an injunction that Beeseley remove these improvements. His principal argument was apparently that the easement was only for drainage and couldn’t be used also for a driveway.
For reasons not made clear (probably because the Court of Appeals doesn’t understand them, either), preliminary proceedings were lengthy and confused. There were motions for summary judgment and an evidentiary hearing on a preliminary injunction. After the injunction hearing the trial judge indicated that he would rule for Smith and asked for a form of order; Smith’s response, a year later, was to file another motion for summary judgment that the court denied. Before trial Smith finally got around to requesting an order on the preliminary injunction, which the court entered, ordering Beeseley to remove the improvements because they would change the drainage in the event of a 100-year flood. Along with this the court issued a Rule 56d order specifying undisputed facts.
At trial Beeseley presented a new design for the improvements that he said wouldn’t interfere with the watercourse. The trail judge agreed, affirmed the order to remove the old improvements, and permitted construction of the new ones. It found – contrary to the 56d order – that the developer hadn’t intended Beeseleys’ easement to be solely a drainageway. And it concluded that the old improvements didn’t, after all, violate 48-3613, ruling the statute inapplicable because the local flood control district doesn’t regulate watercourses that small. The court awarded Smith nominal damages (we’re not told the amount) on the nuisance claim because some rocks had slid onto his property during construction of the improvements. (It ordered Beeseley to try not to do that while building the new ones.) It also awarded Beeseley $55,000 in attorney fees.
The bulk of the opinion discusses the contention that the easement was for drainage only. On this issue Smith loses. As the trial court had ruled, the language of the easement permitted compatible uses and the driveway was compatible. That the plat did not show roadways where the easements were didn’t prevent people from putting driveways on them as long as the driveway didn’t interfere with the function of the drainageway.
Smith argued that the trial court couldn’t depart from the 56d order. But such orders are interlocutory and subject to revision. If, for example, a fact thought to be “without substantial controversy” under 56d is later found to be controverted then the ruling can be changed. (Any wonder why nobody bothers with Rule 56d anymore?)
Smith also contended that “because drainage is a public use, the plat‘s dedication of land for this purpose combined with the sale of lots within the subdivision vested title to the subject property in Gila County,” and that therefore Beeseley didn’t even own it. This was based on an old case and two statues from the 1939 Code (in effect when the property was platted). This is one of those clever, midnight-oil arguments that rarely fly. Dedication is a matter of intent, not something that happens automatically, and the trial court had found that the original developer didn’t intend to give the land to the County.
But as to 48-3613 the court concludes that the trial court was right the first time: Beeseley violated it. The statute requires government approval of any alteration of the flow of water in a watercourse. There are exceptions but even under the exceptions plans must be filed, which Beeseley hadn’t done. Though the County may limit the scope of its regulation (in Gila County’s case to drainage areas of more that 160 acres), it cannot change the statute: those who alter a watercourse without following it are liable. (It looks like the Gila County regulations made it difficult, if not impossible, to comply fully with the statute but the court cuts Beeseley no break for that except to suggest that the trial court can consider his predicament in deciding whether to award damages or fees.)
The statute requires that the watercourse be returned to its original state, so the court remands for the entry of an order to that effect and a ruling as to fees (the court vacates the award to Beeseley).
48-3613, by the way, is often the most powerful tool in this sort of case. “Watercourse” turns out to be a surprisingly broad term and actual damage is not required. The statute is strict, more so than the common law. In this case the easement owner considered the problem (Beeseley had contacted the flood-control people). Many owners don’t, though, especially in areas where people just think they’re dealing with a dirt road in barren desert where nobody has even seen a drop of water.
(link to opinion)