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Waters and Adjoining Lands_alteration of drainage by fill_expert testimony not required_expert qualified
Expert testimony was not required, and the trial court did not err by denying defendant's
motion to exclude testimony by an expert, in a case in which plaintiff alleged that a portion of her
property flooded during rainstorms after defendant placed 68 truckloads of fill dirt on the rear of
his property. The case involved no scientific principle more complex than that water flows
downhill and carries with it loose material. Even assuming that expert testimony was required,
this witness was qualified and his opinion was based on a wide range of scientific data and
Stam, Fordham & Danchi, P.A., by Paul Stam and Theodore
Danchi, for plaintiff-appellee.
Teague Campbell Dennis & Gorham, LLP, by John L. Tidball, for defendant-appellant.
Defendant appeals from a judgment awarding plaintiff damages for defendant's trespass and violation of N.C. Gen. Stat. § 113A Art. 4, the Sedimentation Pollution Control Act (the SPCA). We affirm.
Plaintiff filed a district court complaint against defendant on 3 March 2003, seeking damages for defendant's alleged common law trespass and nuisance, and his violation of the SPCA. Defendant answered in May 2003, denying the material allegations of plaintiff's complaint. In July 2003 the case was transferred byconsent order to Superior Court, on the basis of the amount of damages claimed. The case was tried before a jury in September 2004; uncontradicted trial evidence established, in pertinent part, the following: Defendant and plaintiff are long-time residents of Apex, North Carolina. Defendant owns and operates a gas station on Apex's main street, and the rear of his property adjoins plaintiff's back yard. Behind defendant's gas station is a steep hill that slopes sharply down to the boundary between his property and plaintiff's, while on plaintiff's side of the boundary line, the land slopes gently up towards her home. The property line between plaintiff and defendant is marked by a small watercourse, described variously at trial as a drainage ditch and an intermittent stream.
Plaintiff, who was 83 years old at the time of trial, testified that she had lived in the same house since 1957. About 15 years earlier she and her husband planted a row of Leyland cypress trees in their back yard, near the property boundary with defendant. The trees thrived, ultimately growing to about twenty- five feet high and eight feet across. When plaintiff's husband became ill in 2000, several people helped by mowing plaintiff's yard. Delman Williamson, plaintiff's brother-in-law, testified that when he mowed in 2000, the trees were healthy, the land was dry around the cypress trees, and he was able to take a riding lawn mower between the row of trees and the boundary creek. William Nolan Cooke testified that he had mowed plaintiff's lawn in 2000, and that the trees were healthy and the areas around them dry. In April 2001 defendant dumped sixty-eight truckloads of fill dirt on the hill behind his gas station. The present lawsuit arises from damages allegedly caused by defendant's actions.
Cooke testified that, after defendant dumped the fill dirt on the hillside above the creek, he observed dirt running into the stream when it rained. Additionally, the plaintiff, Cooke, and Williamson all testified that, during the spring and summer of 2001, water ran onto plaintiff's back yard, and by summer of 2001 plaintiff's cypress trees were in standing water. Thereafter, the trees began to sicken and die. Phillip Crump, who was qualified as an expert witness arborist and nurseryman, testified that in the summer of 2001 plaintiff asked him to examine her dying cypress trees. He observed the standing water around the base of the trees, studied the trees' leaves and growth patterns, and analyzed the soil around the trees' roots. Crump found no evidence of disease or insect damage. His expert opinion was that the damage to plaintiff's trees was caused by their being in standing water, with their roots in wet, saturated soil. He also testified that it would cost about $20,000 to replace the trees.
Robert Ross testified that he was employed by the city of Apex to enforce the SPCA. During the spring and summer of 2001, he received complaints from defendant's neighbors that every time it rained, sediment washed down the hillside where defendant had dumped the fill dirt. Ross personally observed red clay washing down the slope and into the little stream at the bottom of the hill. He notified defendant that it was a violation of the SPCA toadd soil on the creek bank without taking certain protective measures to keep the hillside from eroding. Charles Brown, a field agent with the North Carolina Department of Water Quality (DWQ), evaluated the site and determined that the watercourse was an intermittent stream that was subject to regulation by the SPCA and DWQ. Defendant disputed this conclusion, and asked for a second opinion; Ross then asked Steve Mitchell, from the North Carolina Department of Water Quality, to become involved.
Steven Mitchell testified that he had worked for twenty-six years as an environmental specialist with the State of North Carolina. His academic background in biology and chemistry had been supplemented by numerous continuing education courses dealing with stream ecology. Mitchell was involved in the development of the administrative rules for enforcing the SPCA, including the rules that defendant was alleged to have violated. His experience also included years of evaluating sites for compliance with environmental regulations. Mitchell was qualified by the trial court as an expert in environmental science and pollution control regulations.
Mitchell testified that he had been asked to provide a second opinion on the nature of the stream behind defendant's gas station. After evaluating the site, Mitchell agreed with Brown that it was a stream feature that was subject to protection under the riparian buffer rule. Mitchell also determined that defendant was in violation of the relevant environmental regulations. He testified that, in his expert opinion, defendant's fill activitieshad altered the course of the stream, caused backup and ponding of water in plaintiff's yard, and led to the deterioration of plaintiff's row of cypress trees.
Following the presentation of evidence, the case was submitted to the jury, which returned a verdict finding defendant liable for $14,000 damages to plaintiff for trespass and violation of the SPCA. On this verdict, the trial court entered judgment 1 October 2004, awarding plaintiff $14,000 plus interest and attorneys' fees. From this judgment, defendant timely appealed.
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