Kubota, Grace M.

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Surface Waters in California: Adoption of Reasonable Use Rule: Keyes v. Romley (Cal. 1965)

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Santa Clara Law ReviewVolume 6 | Number 1 Article 101-1-1965Surface Waters in California: Adoption ofReasonable Use Rule: Keyes v. Romley (Cal. 1965)Grace M. KubotaFollow this and additional works at: http://digitalcommons.law.scu.edu/lawreviewPart of the Law CommonsThis Case Note is brought to you for free and open access by the Journals at Santa Clara Law Digital Commons. It has been accepted for inclusion inSanta Clara Law Review by an authorized administrator of Santa Clara Law Digital Commons. For more information, please contactsculawlibrarian@gmail.com.Recommended CitationGrace M. Kubota, Case Note, Surface Waters in California: Adoption of Reasonable Use Rule: Keyes v. Romley (Cal. 1965), 6 SantaClara Lawyer 104 (1965).Available at: http://digitalcommons.law.scu.edu/lawreview/vol6/iss1/10SANTA CLARA LAWYERsuch injury is not synonymous with the phrase "arising out of and inthe course of the employment" as used in section 3600 to describe acompensable injury .... 20Thus the Mclvor court distinguished "scope of his employment" from "arising out of and in the course of the employment,"declaring that the former implied a strict, more employer-orientedsort of activity than did the latter. The First District Court ofAppeals which heard the Saala case disagreed with the FourthDistrict's interpretation of a co-employee's liability. The FirstDistrict Court asserted that "There is no reason to assume ... thatthe Legislature intended the area of immunization to be less thanthe area of compensation.' Subsequently, the Supreme Court'sjudgment in Saala decided the issue in favor of the Fourth District'sview.CONCLUSIONRecognizing the potential for double recovery, the CaliforniaSupreme Court nevertheless holds a negligent employee responsiblefor his actions in this overlapping area in which workmen's com-pensation is applicable but the co-employee is not immune from suit.For an employee to be free from liability for his negligence, he mustbe working strictly within the scope of his employment in therespondeat superior sense of that phrase, while the injured em-ployee's ability to recover workmen's compensation benefits extendsto broader situations arising from his employment, including park-ing lot accidents following a work shift.Kent FrewingSURFACE WATERS IN CALIFORNIA:ADOPTION OF REASONABLE USE RULE:KEYES V. ROMLEY (CAL. 1965)A landowner, whose property is higher than that of his neighbor,has certain rights and duties concerning the surface water thatflows from his property onto the property of the other. As a corollaryto this, the owner of the lower or servient tenement has other rightsand duties concerning the flow of the water onto his land. Thusstated, the surface water problem has been clearly identified in all20 Id. at 139-40, 33 Cal. Rptr. at 747.21 Saala v. McFarland, 231 A.C.A. 22, 28, 41 Cal. Rptr. 530, 535 (1964).[Vol. 6CASE NOTESthe jurisdictions of the United States.1 Nevertheless, the applicablerule of law has varied according to each jurisdiction.2PRIOR LAW IN CALIFORNIATraditionally, California has followed the civil law rule.' Thatrule can be stated as follows:. .. [A]s between the owners of higher and lower ground, the upperproprietor has an easement to have surface water flow naturally fromhis land onto the land of the lower proprietor, and that lower pro-prietor has not the right to obstruct its flow and cast the water backon the land above.4The California courts were quick, however, to apply an excep-tion to this rule if the real property in question was located in anurban area. By way of dictum, the California Supreme Court saidthat the civil law rule was not generally followed, "in so far as itapplies to town or city lots."5Succeeding cases in this state have re-emphasized this generaldistinction. In Los Angeles Cemetery Ass'n v. City of Los Angeles'and Voight v. Southern Pac. Co.,' the court recognized the need fora modification of the civil law rule in view of the changing characterof the community. The court in the Voight case distinguished therule set forth in LeBrun v. Richards a by stating:We would point out, however, in that case [LeBrun] plaintiff anddefendant were both still engaged in agriculture. . . . In that caseneither plaintiff nor defendant was a party to the urbanization of theneighborhood.8Nevertheless, the Voight case continued to treat its ruling as anexception to the civil law doctrine. It was for the District Court ofAppeal, in Keyes v. Romley,9 to assert that the rule in Californiahad changed to the reasonable use doctrine.1 Surface waters have been defined as ". . . waters that are precipitated byrains and snows on the land. . . .The chief characteristic is inability to maintaintheir identity and existence as a body or stream of water. They flow vagrantlyover the land but are not divested of their character as surface waters by reasonof flowing onto lower land in obedience to the law of gravity ... 2" 52 Cal. Jur.2d Waters § 724 (1959).2 There are generally three views on surface waters. For discussion see 93C.J.S. Waters § 114(a)(1) (1956).3 LeBrun v. Richards, 210 Cal. 308, 291 Pac. 825, 72 A.L.R. 336 (1930).4 93 C.J.S., supra note 2, at 803.5 Ogburn v. Connor, 46 Cal. 346, 13 Am. Rep. 213 (1873).6 103 Cal. 461, 37 Pac. 375 (1894).7 194 Cal. App. 2d 907, 15 Cal. Rptr. 59 (App. Dep't Super. Ct. 1961).7a 210 Cal. 308, 291 Pac. 825 (1930).8 Id. at 915, 15 Cal. Rptr. at 64.9 233 A.C.A. 681, 43 Cal. Rptr. 683 (1965).1965]SANTA CLARA LAWYERTHE KEYES CASE AND A NEW RULEIn the Keyes case, the plaintiffs, Keyes, and the defendants,Lusebrinks, were adjoining landowners in the town of Walnut Creek.In 1956, the defendants leased their property, as yet unimproved, tothe defendant Romley. The plaintiffs, in the meantime, built anappliance shop on their premises during the same year. In the processof building, they piled excavated dirt in the rear of their property,which was adjacent to the boundary line of the defendants' property.Later in 1957, the defendant lessee constructed a building whichhoused an ice rink. He constructed an asphalt pavement aroundthe building. The defendant also installed four downspouts on theside of the building nearest to the plaintiffs' land. Excavation andfurther improvements by both parties changed the contour of theland so that the property of the plaintiffs was lower than that of thedefendants. Water from the defendants' land flowed onto the Keyesproperty. Keyes tried to divert the water away by constructing aditch. After that failed, he used railroad ties in an attempt to curtailthe flooding. Flooding occurred from 1959 to 1961. The problemwas finally remedied in 1962, but the plaintiffs brought this actionto recover damages which were sustained during the preceeding threeyears.The trial court found that the defendant Romley had gatheredsurface waters onto the lower lands of the plaintiffs in a greatervolume than had been discharged prior to the construction of theice rink and the asphalt pavement. Accordingly, judgment was givenin favor of the plaintiffs.On appeal, the District Court reversed the judgment in favorof the defendants. In doing so, the court unequivocally asserted anew doctrine concerning surface water rights in California.The reasonable use rule, sometimes referred to as the Minnesotarule, differs considerably from the civil law and common enemy °rules. Under it, a possessor of land is not unqualifiedly privileged todeal with surface water as he pleases, nor is he absolutely prohibitedfrom interfering with the natural flow of surface waters to the detri-ment of others. Each possessor is legally privileged to make reason-able use of his land, even though the flow of the surface waters isaltered and causes some harm to others. The owner of the dominant10 Under the common enemy rule, surface water is " . . . regarded as a commonenemy which every proprietor may fight as he deems best, regardless of its effecton other proprietors; and under this rule the lower proprietor may take any measuresnecessary for the protection or improvement of his property, although the resultis to throw the water back on the land of an adjoining proprietor. . . ." 93C.J.S. Waters § 114(a)(2) (1956).[Vol. 6CASE NOTEStenement incurs liability only when his harmful interference isunreasonable."The court concluded in Keyes that to establish reasonable use:(1) there should be a reasonable necessity for the drainage; (2)reasonable care must be taken to avoid unnecessary injury to theland receiving the burden; (3) the utility or benefit accruing to theland drained should reasonably outweigh the gravity of the harmresulting to the land receiving the burden; (4) when practicable,the drainage should be accomplished by improving and aiding thenormal and natural system of drainage according to its reasonablecarrying capacity, or in the absence of a natural drain, a reasonableand feasible artificial drainage system should be provided. 2Instead of distinguishing between urban and rural property, asthe courts in previous cases had done, this court adopted a differenttack. Reasonableness is to be the determining factor. Other jurisdic-tions which have adopted the reasonable use rule are New Hamp-shire,' 8 Minnesota,14 New Jersey,'5 and most recently, Alaska.'CONCLUSIONThe abandonment of the civil law rule has been long in coming.In the main, California courts have recognized that the civil lawrule, which defined surface waters in terms of natural flow, is nolonger adequate in a growing, highly urbanized and industrial state.In so far as the reasonable use rule has been adopted, there areseveral questions which remain to be answered.The first point of inquiry is, does the reasonable use ruleapply only to urban lands? The court in the Keyes case arrived atits decision by observing:In view of the rapid growth and development of urban com-munities in this state, we believe that the time has come for theadoption in this state of a rule with respect to surface waters in citiesand towns which attends the application of the rule of reason andwill thereby balance the competing interests in the light of social'progress and common wellbeing.1711 See generally Kinyon & McClure, Interferences with Surface Waters, 24Mi m. L. REv. 891, 904 (1940).12 233 A.C.A. 681, 690-91, 43 Cal. Rptr. 683, 690 (1965).13 City of Franklin v. Durgee, 71 N.H. 186, 51 At. 911 (1902).14 Sheehan v. Flynn, 59 Minn. 163, 32 N.W. 462 (1894).15 Armstrong v. Francis Corp., 20 N.J. 320, 120 A.2d 4 (1956).16 Weinberg v. Northern Alaska Dev. Corp., 384 P.2d 450 (Alaska 1963).Also, for general comments on reasonable use rule see 59 A.L.R.2d 435.17 233 A.C.A. 681, 689-90, 43 Cal. Rptr. 683, 690 (1965). [Emphasis added.]1965]SANTA CLARA LAWYERIf the court meant to apply the rule of reason only to the urban areasof the state, the problem of surface waters in the rural parts of thestate has no applicable rule of law, unless the civil law rule is to beapplied. The language of the District Court of Appeal seems toconsider only the urban lands of California. Certainly, if the courtmeant to have a bifurcated surface water doctrine, it left itselfopen to further problems of determining what constitutes an urbanarea. In all probability, the courts will apply the reasonable usedoctrine to rural lands as well as to urban lands in order to avoidthis dilemma.The second question is, does the adoption of the reasonable userule mean that the court is tending to look at the surface water prob-lem in terms of tort liability, rather than in terms of property law?Traditionally, the surface water problem was an area of propertylaw. With the application of the rule of reason, the implicationseems to be that the legal relations of the parties are defined more interms of legal obligations rather than by the rigid rules found inproperty law. It has been observed that:Such words as "right," "servitude" and "easement" seem toconnote something fixed and definite to most courts, and it is difficultfor them to use those terms in describing flexible legal relationsdependent on varying circumstances. The terms have acquired a certainrigidity and absoluteness from their long association of the LandLaw. 18The same writers seemed to feel that the reasonable use ruletended to define surface water in terms of tort law.'" They went onto say that the use of tort law in this area would bring out a clearerand more penetrating analysis of the fundamental considerationsinvolved.' °The practical importance of this problem is apparent. Certainly,the theory which one uses to plead his surface water action may welldetermine the outcome of his case.Grace M. Kubota18 Kinyon & McClure, supra note 11, at 937-38.19 Id. at 939.20 Ibid.[Vol. 6

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Surface Waters in California: Adoption of Reasonable Use Rule: Keyes v. Romley (Cal. 1965)

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