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Surface Water Flow, Cavorting Catfish, and Liberated Beaver

A student once asked if court opinions ever discussed beavers and their propensity for obstructing streams and ditches. In fact, various forms of wildlife figure prominently in litigation across the country. While the lawsuits were doubtless no laughing matter to the parties involved, the opinions that result often reveal the lighter side of our judicial system.

Beavers have become prominent among the wild four-footed creatures for their ability to complicate the American judicial process. In addition to diversion of waterways, common complaints include destruction of woodlands and the incidental flooding of adjoining properties near the construction projects of these industrious rodents. All too often, a landowner will destroy the dam only to see it rebuilt in a matter of days.

Because watercourses commonly are called for in deeds as boundary lines, beaver dams and lodges—and the associated reservoirs—often straddle existing boundaries. Surveyors may be retained to determine the somewhat imprecise location of these structures. Additional challenges for land use professionals may include the determination of the original “pre-beaver” location of the stream bed.

These difficulties are admirably described in Leone v. Hess Pipeline. The court observes: “Both sides in this controversy made extensive efforts at trial to establish the location of the beaver dam, as being either on the right-of-way or off the right-of-way. While beavers may be master dam builders, they seldom build their dams in straight lines. The Court finds that the beaver dam was located both on and off the right-of-way...In the instant case, the activities that were conducted on the surface of the right-of-way were the activities of third parties, the beavers. There was no evidence that the beavers' activities in any way affected Hess’ use and enjoyment of its pipeline.” [Emphasis added] [1] Court discussion admits damages to timber valued at somewhere between seventy-nine and eighty-five thousand dollars.

As this case makes clear, it is evident that beavers have yet to adopt the use of the transit. Note also that the beaver is referred to as a “third party” in this dispute. There is no evidence the beavers determined the limits of the easement or obtained prior written approval from the pipeline company before starting construction.

An Arkansas opinion teaches a different lesson—but again includes the humble beaver. Bilo v. El Dorado considers legal principles related to surface flow of water and contrasts them with those concepts applied to flowing water that is confined to a recognizable channel: “The evidence showed that the water moved through Bilo's tract with such flow and direction that beavers built dams, thus indicating a flow through a definite channel. The large drainage ditch constructed by First Financial Bank, the parties' neighbor to the south, is further indication of the water's force, volume, and constant flow along this path.” [2] In this situation, these clever rodents aided the court in determining whether surface flow or channel flow principles should apply.

Systems Relating to Surface Flow

Surface flow is the term generally applied to water that flows across the ground without any recognizable channel. These waters are distinct from those resulting from flooding. States generally apply variations of the “Common Enemy Doctrine”, the “Civil Law Rule,” or the “Reasonable Use Doctrine” to situations involving water damage from surface flow of water.

The Ohio court describes the reasonable use rule as follows: “In resolving surface water disputes, Ohio courts will apply a reasonable-use rule under which a possessor of land is not unqualifiedly privileged to deal with surface water as he pleases, nor absolutely prohibited from interfering with the natural flow of surface waters to the detriment of others. Each possessor is legally privileged to make a reasonable use of his land, even though the flow of surface waters is altered thereby and causes some harm to others, and the possessor incurs liability only when his harmful interference with the flow of surface water is unreasonable.” [3]

The state of Virginia applies a variation of the common enemy doctrine: “For purposes of trespass, Virginia applies the modified common law rule applicable to surface water. Under this rule, surface water is a common enemy, and each landowner may fight it off as best he can, provided he does so reasonably and in good faith and not wantonly, unnecessarily or carelessly.” [4]

New Jersey case law seems to follow a recent trend seen in several states. For many years, this jurisdiction followed the modified common enemy doctrine, but the benchmark ruling Armstrong v. Francis: 20 N.J. 320 (1956) forms the basis of a shift to the reasonable use rule.

Cavorting Catfish

Additional instruction on the common enemy doctrine comes to us from a completely different creature—the catfish. While they generally present a calm and inoffensive demeanor to the world, Rivenbark v. A.C.L.R. Co. admits that catfish are quite capable of getting a bit carried away in their leisure time.

This South Carolina case describes the initial flooding of a garden patch and the subsequent complaint by the outraged owner. The South Carolina court affirms the common enemy doctrine and upholds the right of each individual landowner to fight surface flow on an individual basis. Thus, the detention or diversion of this surface flow is not considered an actionable offense.

Claiming the destruction of his collards, peas, and strawberry plants, the claimant then introduced evidence of catfish misbehavior in an attempt to prove that the flow of water must have been from an actual stream channel rather than from mere surface flow. The court discounted this evidence with these illuminating comments: “In this connection, the plaintiff's statement that catfish disported themselves in his garden is interesting and doubtless true. But in view of the well-known ability of this genus of fish to enjoy life, liberty, and the pursuit of happiness in any ordinary surface water pond, and of the well-established habit of certain species of the family of traveling long distances over dry land from puddle to pond, we incline to the opinion that the presence of the catfish did not conclusively establish that defendant's ditch was a natural water course. The writer regrets that he is unable personally to vouch for the foregoing naturalistic data or to buttress same with an opposite opinion from the decisions of this Court, and therefore feels constrained to refer the legal student of piscatorial instincts and inquiring mind to a more or less illuminating article on the subject of catfish in the Ency. Brit. (11th Ed.), Vol. V, p. 512.” [5]

Seldom have the constitutional rights of catfish been so thoroughly discussed. This opinion provides another illustration of a situation where the behavior of wildlife is applied as evidence for the court.

Back to Beavers

Given the current supply of beavers in some parts of the United States, it is unsurprising to find numerous opinions that consider the responsibility of property owners to remove beaver dams that impound water and result in damage to nearby properties.

A few cases refer to individuals accused of failing to remove beaver from a stream with the ulterior motive of damaging the neighboring tract of land. We are reminded in such cases beaver are a part of the natural world and their actions are independent of any wish of property owners. Had the owner acted in some affirmative manner to block the stream and divert water on to the adjoining parcel, some relief might have been due to the claimant. However, the: “…record demonstrates that defendant did not act to prevent the flow of water from the plaintiff's land. Consequently, defendant is not liable for property damage caused by the flooding of the Bransford Tract.” [6]

Another similar claim was discussed in a recent New York opinion—with a similar outcome. “The complaint alleges that defendants "intentionally suffered and permitted" the beavers to remain on their land. In their affidavit in support of their motion, defendants state that they in no way sought, encouraged or invited the presence of the beavers. Owners of rural land have no affirmative duty to remedy conditions of a purely natural origin upon their property, in this instance the work of wildlife, even though such conditions may cause inconvenience or even damage to the property of neighbors.” [7]

In 1917, the Supreme Court of New York was forced to consider destructive behavior of so-called “liberated beaver”. This description should not be considered as a judgment of their level of social development—rather, it describes the process of re-introduction to locations where beavers were eradicated by previous over-harvesting.

Barrett v. New York recognizes that beavers may also be “planted” in a manner similar to the process by which multi-flora rose has become common in some parts of the United States. To extend the analogy one step further, the beavers often become quite well established in areas far beyond the extent originally envisioned by the humans behind the reintroduction.

This was the situation described in an early New York decision Barrett v. New York. The dispute was further complicated by the legislative protections introduced in 1904 for the benefit of the re-introduced beaver.

This opinion begins by stating four beaver were re-introduced on Eagle creek where they “seem to have remained and increased”. We also learn the beaver “are naturally destructive to certain kinds of forest trees.” (An apt example of judicial notice) After further discourse on the eating habits and living arrangements typical of beavers, the court raises the somewhat questionable assumption that this fact “was known by the legislature as early as 1900.” (Well, maybe…but how many legislators study living arrangements for beaver?)

This decision describes the beaver as a natural asset that should be preserved despite the damages claimed by the plaintiffs in this suit: The eagle is preserved, not for its use but for its beauty. The same thing may be said of the beaver. They are one of the most valuable of the fur-bearing animals of the state. They may be used for food. But apart from these considerations their habits and customs, their curious instincts and intelligence place them in a class by themselves. Observation of the animals at work or play is a source of never-failing interest and instruction. If they are to be preserved experience has taught us that protection is required. [8]

An Oregon opinion describes another possible case of illegal “beaver planting”—this time by a private individual. A property owner was accused of obtaining and unlawfully planting beaver on his own land. The suit further alleged the beaver obstructed the channel of a stream and illegally diverted water allotments onto the landowner’s property for irrigation. Ultimately, this court ruled that since the State Game Commission was not a party in the suit, the court was powerless to order the removal or destruction of the offending beaver. [9]

Prescription by Beaver

Few if any reputable surveying texts will admit the existence of the principle “prescriptive easement by beaver”. However, this was the doctrine proposed by the dissent in the Georgia decision Dawson v. Wade.

Several families of beavers had constructed four dams along Reedy Creek. The dams had remained substantially in the same location for over 20 years. The resulting ponds were useful to Wade, who had diverted water from the impoundment for irrigation. When Dawson became determined to destroy the dams and restore stream flow to its original location prior to the construction of the beaver dams, Wade filed suit to protect his claimed right to the ponds.

Overruling the lower court decision, the majority ruled: “We must disagree with the trial court concerning the status of the beaver dams in the applicable segment of Reedy Creek. The dams are not the handiwork of Wade, and he can enjoy no prescriptive right to their continued existence.” [10]

The impoundment of water was not caused by a human agency and no actual entry on the disputed parcel by the claimant could be proven. Because open and notorious acts by the claimant are required to prove a prescriptive right, the court decision was reasonable. Had the dams been a direct result of human intervention, the outcome might well have been different.

The author of the dissenting opinion in this decision would have awarded a prescriptive easement based on the work of the industrious beavers. However, the majority upholds established principles of prescriptive claims and requires the claimant to enter on to the disputed land and perform visible acts of possession.

While other forms of wildlife figure prominently in other decisions, beaver and catfish have certainly earned a unique status in the pantheon of the United States legal system.

List of Sources:

1. Leone v. Hess Pipeline Co.: 541 F. Supp. 466; 1982 U.S. Dist. Court.

2. Bilo v. El Dorado: 101 Ark. App. 267; 275 S.W.3d 660 (2008)

3. Joseph v. Wyss: 72 Ohio App. 3d 199; 594 N.E.2d 142 (1991)

4. Kurpiel v. Hicks: Va. Supreme Court: Record No. 112192 (2012)

5. Rivenbark v. A.C.L.R. Co. 124 S.C. 136; 117 S.E. 206 (1923)

6. Bransford v. International Paper: 750 So. 2d 424 (2000)

7. Frank v. Garrison: 184 A.D.2d 852; 584 N.Y.S.2d 217 (1992)

8. Barrett v. State of New York: 220 N.Y. 423; 116 N.E. 99 (1917)

9. State v. Stewart: 163 Ore. 585; 96 P.2d 220 (1939)

10. Dawson v. Wade: 257 Ga. 552; 361 S.E.2d 181 (1987)

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