I respectfully dissent.
In its opinion, the majority takes the position that the reasonable use rule should be applied in the instant case. I tend to agree that this is the rule that is being applied in the more recent cases, wherein the upper riparian landowner diverts the natural flow of rainwater from its natural waterways into the waterways of a lower riparian *Page 105 landowner, causing excessive flooding. See Masley v. Lorain (1976), 48 Ohio St.2d 334.
However, the facts in the Masley case are distinguishable from the instant case. In Masley, the city implemented a storm sewer construction program to drain storm and surface waters from the property of city residents regardless of the direction of its natural watercourse and channelled the waters to Martin Run Creek. The city had been forewarned that storm improvements were necessary on Martin Run Creek before the sewer construction was completed, in order to carry the increased water flow from additional watercourses which the storm sewer system would cause during heavy rains. In the instant case, waters were not diverted from other watercourses and channelled to the watercourse running in front of Mrs. Myotte's property. The surface waters were collected into sewers and channelled to their natural watercourse, which passed in front of the Myotte property.
This was a reasonable use of the upper landowner's property. The Myotte property owner had to expect that as the upper lands were developed, there would be an increase in the volume of water flowing through the watercourse in front of her property. The upper land owner should not be penalized for the overflow of a natural watercourse in the reasonable use and development of its property. Oakland Club v. South Euclid (1960), 83 Ohio Law Abs. 153, 165 N.E.2d 699.
In the concurring opinion of the majority, it is stated that "[t]he down stream landholder had no culpability for the increased flow." This may be true. However, it does beg the question of whether Mrs. Myotte had any culpability as to the increased flooding of her property. The record reflects that prior to any development of the upper riparian estate, there was continuing flooding of the Myotte property whenever there was a heavy rainfall. The evidence also discloses that the natural waterway in front of her property was obstructed and reduced in size by a concrete culvert with a 27 inch pipe to allow drainage water to pass through. If this obstruction was removed, the *Page 106 watercourse on Mrs. Myotte's property at this point would be at least four to six feet wide and three to four feet deep.
Thus, the removal of the concrete obstruction would cause the water to flow much more freely. It would increase the passageway for the free flow of water three and one-half times greater than with the 27 inch pipe. To what degree it would have alleviated the excessive flooding of Mrs. Myotte's property, we do not know. However, she was advised by the Village of Mayfield to remove the concrete culvert with the 27 inch pipe. She refused. Certainly, the reasonable use rule is just as applicable to the lower riparian landowner as it is to the upper riparian landowner.
The obstruction of the watercourse in front of her property by the concrete culvert certainly contributed to the flooding of her property. As to what degree this contributed to the flooding of her property, we will never know, since she refused to remove the culvert. Her refusal to remove the concrete obstruction was not acting reasonably. If we are going to apply the reasonable use rule, then I do not feel she can be heard to complain when the record reflects she contributed to these damages.
I do not feel it was the duty of the village of Mayfield as indicated by the majority to widen the existing watercourse of the Myotte property. The concrete culvert was on Mrs. Myotte's property. She had it put there and had control over it. The duty was upon her to remove it. Had she done so, and, if the flooding of her property had continued, then I could agree with the majority that it would become the duty of the village to widen the existing watercourse on the Myotte property so that the increased water from the industrial park would be accommodated.
Based on the above, it is my opinion that the judgment of the lower court should be reversed. *Page 107