United States District Court, E.D. Pennsylvania
R. Sánchez, J.
case involves a dispute between neighboring property owners:
a shopping mall and a railroad. Plaintiff MD Mall Associates,
LLC, t/a MacDade Mall Associates, L.P., owns and operates the
MacDade Mall, a shopping center located on property adjacent
to and downhill from a railroad track and right-of-way owned
and operated by Defendant CSX Transportation, Inc. During
heavier rains, storm water pools at the outer edges of the
right-of-way on either side of the track and flows onto the
Mall's property from a stretch of the right-of-way near
the eastern end of the parties' shared property line,
flooding the southeast corner of the Mall parking lot.
Although the current flooding pattern appears to have arisen
only within the past decade or so, the Mall seeks to hold CSX
liable for the flooding on the theory that the construction
of the railroad track more than a century ago-and decades
before the Mall itself was constructed- changed the flow of
surface water on the right-of-way, channeling the water into
swales from which it discharges in concentrated form onto the
Mall property. The Mall also argues the current flooding
problem is attributable to CSX's negligent maintenance of
the right-of-way in recent years. CSX denies liability,
arguing it has done nothing to alter the natural course of
the surface water, which continues to flow from higher to
lower ground, and that the Mall's flooding problem is
instead attributable to unmanaged excess flow from the uphill
residential neighborhood on the opposite side of the railroad
track from the Mall. Following a four-day bench trial, which
included a site visit to the area in question, the Court
issues the following findings of fact and conclusions of law
pursuant to Federal Rule of Civil Procedure 52(a). Because
the Mall has not satisfied its burden to prove by a
preponderance of the evidence that CSX is liable for the
flooding under either a continuing trespass or a negligence
theory, judgment will be entered in favor of CSX.
The Existing Topography of the Area in Question
owns the MacDade Mall, a shopping center located in Delaware
County, Pennsylvania. The Mall property is bounded by streets
on three sides: MacDade Boulevard to the north, Glenside
Avenue to the west, and South Avenue to the east.
See Ex. 52. A railroad right-of-way and track owned
by CSX run along the entire southern border of the Mall
property.The railroad track crosses South Avenue at
a railroad crossing located just beyond the southeast corner
of the Mall property.
railroad right-of-way is situated between the Mall to the
north and a residential neighborhood to the south. The
right-of-way sits on higher ground than the Mall and on lower
ground than the residential neighborhood, which slopes upward
from the right-of-way.
single railroad track runs through the center of the
right-of-way. The track is elevated on a bed of compacted
stone ballast, which sits atop a bed of compacted earth known
as hard pan. See Ex. 42 at 64-65; see also
Ex. 37 at 63-64. The bed of ballast supporting the track
slopes away from the track at an angle on either side, toward
the hard pan surface of the right-of-way. See Ex. 37
at 68-70; Ex. 42 at 65.
ballast serves both structural and drainage functions.
Structurally, the ballast keeps the track level and elevated,
see Ex. 42 at 56, and the sloping of the ballast on
either side of the track serves to prevent the track from
moving, see Ex. 37 at 83. Because the ballast is
porous by design, storm water can flow through it. Trial Tr.
74, Dec. 14, 2015; Trial Tr. 179, Dec. 15, 2015; see
also Trial Tr. 120, Dec. 15, 2015. The ballast thus
ensures that water drains away from the track and onto the
surface of the right-of-way where it flows to the nearest low
point. See Ex. 42 at 26-27, 56; Ex. 37 at 82,
the sloped ballast, the surface of the right-of-way is
generally flat in appearance, see, e.g., Trial Tr.
105, Dec. 15, 2016 (Browne) (characterizing the land
alongside the elevated ballast as “flat
property”); id. at 125 (agreeing the area
around the track is “really flat”), though recent
topographic maps of an approximately 120-foot stretch of the
right-of-way and adjacent Mall property west of South Avenue
reveal slight undulations.
either side of the track, the surface of the right-of-way
slopes slightly downward to a low point running generally
parallel to the track close to the property line,
then slopes upward onto the adjacent property. See
Ex. 8, sheets 1-3. The ground on the south side of the track
is generally flatter and higher than the ground on the north
side of the track. See id.
north side of the track, the high point between the track and
the Mall is almost entirely on the Mall property, as is most
of the upslope to that high point. From the high point on the
Mall property, the ground descends down a short hill to the
Mall parking lot. The mounded area at the top of the Mall
hill-referred to throughout this litigation as a
“berm”-is lined with trees and bushes.
south side of the track, the land slopes upward from the low
point on the right-of-way toward the residential neighborhood
further to the south.
ground along the low point on the north side of the track
drops very slightly in elevation from west to east along the
surveyed portion of the right-of-way, then rises again closer
to the railroad crossing. See Ex. 8, sheets 1-3
(showing a slight west-east decline in elevation from a high
of 95.62 feet to a low of 95.5 feet, then an increase to a
high of about 98 feet). On the south side of the track, the
low point generally increases slightly in elevation from west
to east. See Id. (showing a slight west-east
increase in elevation from a low of 96.07 feet to a high of
slight undulations in the surface of the right-of-way and the
adjacent ground create mild depressions at the outer edge of
the right-of-way on either side of the track. Although the
parties have referred to these mild depressions as
“swales” or “drainage swales”
throughout this litigation, at trial, Dr. Browne indicated
that, in fact, he does not believe swales were ever
constructed because “a swale is defined kind of as
somewhat of a concave type of thing, ” and the
right-of-way next to the track is essentially flat.
See Trial Tr. 105, 125-26, Dec. 15, 2015; see
also Id. at 74-75.
The Current Flooding Problem on the Mall Property
at least 2010-and perhaps even earlier-the Mall has
experienced flooding in the southeast corner of the Mall
property during heavier rains.
significant rain events,  storm water pools in the mild
depressions at the outer edges of the right-of-way on either
side of the track.
the surface of the right-of-way is “fairly flat,
” on the north side of the track, the pooling water
flows in an easterly direction toward the railroad crossing
at South Avenue. See Trial Tr. 33-34, 48-49, Dec.
14, 2015. The elevation at South Avenue is higher than on the
right-of-way, and prevents the water from continuing eastward
as it approaches the railroad crossing. See Id. at
49. Instead, before reaching the crossing, the water flows in
a northerly direction onto the lower-lying Mall
property. See Id. at 33-34, 48-49.
water that pools on the south side of the track contributes
to the flooding on the Mall property in that, as the water
accumulates on the south side, it flows through the ballast
supporting the track onto the north side of the right-of-way
and, ultimately, onto the Mall property. See
Trial Tr. 73-74, Dec. 14, 2015; Trial Tr. 178, Dec. 16, 2015.
open-ended drainage pipe extends onto the right-of-way from
the back of a storm water inlet that sits below grade in the
west side of South Avenue, just south of the railroad
crossing. See Ex. 8, sheet 2; Trial Tr. 67-68, Dec.
14, 2015. Because the pipe lacks any kind of protective
covering, it has become clogged with dirt and debris.
See Trial Tr. 72-73, Dec. 14, 2015. The inlet to
which the pipe connects is also clogged. See Trial
Tr. 72-73, Dec. 14, 2015; Trial Tr. 212, Dec. 15, 2015.
the pipe may convey some of the water that collects on the
south side of the right-of-way into the public storm water
system along South Avenue, because of the clogged condition
of both the pipe and the inlet, the pipe functions at a
greatly reduced capacity. See Trial Tr. 73-74, Dec.
14, 2015; Trial Tr. 110, Dec. 15, 2015; Trial Tr. 62, Dec.
clogged condition of the inlet contributes to the flooding
problem on the Mall property in that, during significant rain
events, some of the storm water flowing north on South Avenue
bypasses the inlet and flows onto the right-of-way.
See Trial Tr. 212-14, Dec. 15, 2015.
significant portion of the storm water that comes onto the
right-of-way comes from the upgradient residential
development to the south of the right-of-way.
Mall's expert, Dr. Browne, opined that 42 percent of the
water that comes onto the south side of the right-of-way
comes from the residential neighborhood. Trial Tr. 110, Dec.
15, 2015. According to CSX's expert, Mr. Bross, the
residential neighborhood is the source of 85 percent of the
storm water on the right-of-way. Trial Tr. 219, Dec. 15,
2015; Trial Tr. 43-44, Dec. 16, 2015. Neither opinion is
Browne's estimate understates the actual amount of water
that comes onto the right-of-way from the residential
neighborhood because his calculations incorrectly assume that
water from a sizeable portion of the residential neighborhood
does not reach the right-of-way at all. In Dr. Browne's
view, a 3.257-acre portion of the residential
neighborhood-labeled area “C” on figure 8 in his
expert report-drains into an infiltration device located just
south of the right-of- way at the base of Garfield Avenue, a
street that runs perpendicular to the right-of-way toward the
western end of the Mall. Ex. 2, figure 8; Trial Tr. 109, Dec.
15, 2015 (“So we feel that C is being infiltrated. It
is not going down onto the railroad.”). Dr. Browne
conceded, however, that he had never actually observed the
infiltration device when it was raining, and when presented
with a photograph depicting the device completely inundated
with water during a rainstorm, he acknowledged that, at least
during a heavy rain, the device would not collect all of the
water that flows toward it. Trial Tr. 131-32, Dec. 15, 2015;
Ex. 79. Although the photograph of the submerged Garfield
Avenue infiltration device was taken after a more than
four-inch rain, Mr. Bross, who has observed the Garfield
Avenue infiltration device on multiple occasions, confirmed
that water from the residential neighborhood bypasses the
device and flows onto the right-of-way, even in minor
rainfalls. See Trial Tr. 13-14, 28, Dec.
16, 2015. The Court therefore finds that, contrary to Dr.
Browne's testimony, storm water from area “C”
also flows onto the right-of-way, increasing the proportion
of storm water on the right-of-way that originates in the
Bross's estimate, in contrast, overstates the amount of
storm water on the right-of-way that comes from the
residential neighborhood to some degree, as his 85 percent
calculation appears to be based solely on the acreage of the
residential neighborhood that drains onto the right-of-way,
without regard to other factors. See Trial Tr.
218-20, Dec. 15, 2015.
the Court does not accept either expert's calculation as
to how much of the water that ultimately flows from the
right-of-way onto the Mall property originates from the
upgradient residential neighborhood, the Court finds that
water from the residential neighborhood contributes
substantially to the buildup of water on the right-of-way and
thus to the flooding problem on the Mall property.
in the conditions on the right-of-way on the east and west
sides of South Avenue after a heavy rain reinforce the theory
that storm water runoff from the residential neighborhood
plays a role in the flooding problem on the Mall property.
Photographs of the right-of-way taken on April 30, 2014,
during or after a large rain event from which the Mall
experienced flooding, see Trial Tr. 30-31, Dec. 15,
2015, show significant pooling of water on both sides of the
right-of-way to the west of South Avenue (i.e., the area
adjacent to the Mall property), but minimal pooling along the
right-of-way on the east side of the street, see Ex.
12 at 7b, 10b; Trial Tr. 216, Dec. 15, 2015. Although the two
sections of right-of-way have “the same ballasts, same
rails, same ties, [and] same land forms adjacent to . . .
them, ” the upgradient property to the south is
different on the east and west sides of South Avenue. See
Id. at 216-17. The upgradient property to the south of
the right-of-way on the east side of South Avenue includes
only a single residential cul-de-sac with a small number of
houses, as compared to the denser residential neighborhood to
the west. See Ex. 52. The remainder of the
upgradient land on the east side of the street is used for
athletic fields or parks, or is simply open land with grass
and trees, as opposed to the largely impervious land on the
west side. See Id. The right-of-way to the east of
South Avenue thus receives much less drainage from the
adjacent land to the south. See Trial Tr. 216-17,
Dec. 16, 2015.
existing flow of water in the area in question is generally
from higher to lower ground. Water flows from the upgradient
residential development onto the south side of the
right-of-way, and from the south side of the right-of-way
through the ballast under the track and onto the lower, north
side of the right-of-way. On the north side of the
right-of-way, water flows from west to east, following the
slight downward grade along a portion of the right-of-way,
and then, when the ground begins to slope upward toward the
railroad crossing, flows north, down the hill to the
lower-lying Mall parking lot.
Development of the Area in Question
Construction of the Railroad
discussed in greater detail below, the Mall argues CSX is
liable for the flooding on its property because construction
of the railroad more than a century ago changed the flow of
surface water on the right-of-way, channeling the water into
swales from which it discharges in concentrated form onto the
the Mall has developed detailed information regarding the
current topography and flow of water in the area in
question, the record contains scant evidence regarding the
topography and flow in this area at any time before the Mall
became aware of the flooding problem in 2010.
railroad track now owned by CSX was constructed by the
Baltimore and Ohio Railroad Company (B&O) in the late
1800s. See Ex. 17.
parties agree that before the track was constructed, the land
where the right-of-way, the Mall, and the upgradient
residential neighborhood to the south now sit consisted of
undeveloped forest land. See Trial Tr. 65-67, Dec.
15, 2015; Def.'s Proposed Findings of Fact and
Conclusions of Law ¶ 7 (characterizing the area as
consisting of “raw, undeveloped land with trees, and
United States Geological Survey (USGS) topographic map of the
“Chester Quadrangle, ” a much larger geographic
area that includes the area in question, provides some
information regarding the topography of the area in question
in 1898, sometime after the track was constructed.
See Ex. 2, figure 1; Trial Tr. 67-68, Dec. 15, 2015.
Although the track is depicted on the USGS map, the map does
not show the actual elevations along the right-of-way.
See Trial Tr. 123, 125, Dec. 15, 2015; Ex. 2, figure
on the USGS map and information regarding the current
topography of the area in question, Dr. Browne developed
“conceptual views” of the flow of water in the
area in question before and after the track was constructed.
To develop his pre-track conceptual view, Dr. Browne used
spot elevations from the USGS map to determine an approximate
historic grade of the area, opining that in 1898-and,
presumably, in the previous decade as well-the land would
have had a mild downward slope from south to north,
equivalent to a vertical drop of three to four feet over 200
horizontal feet. See Trial Tr. 68-69, 124, Dec. 15,
2015; Ex. 2, figure 2. Dr. Browne further opined that because
the land was undeveloped, storm water would have flowed
without obstruction along the mild slope from south to north
in a “laminar” or sheet fashion. See
Trial Tr. 66, 69, Dec. 15, 2015.
developing his post-track conceptual view, Dr. Browne first
posited that to install the track, B&O would have had to
employ a “cut and fill” technique, cutting into
the up area of the south-north slope and using the excavated
soil to fill in the down side of the slope, to create a level
surface for the track. See Id. at 71-73. Conceding
he is neither a railroad nor a track expert, Dr. Browne
testified cut and fill would have been used as a matter of
“basic civil engineering, ” noting “[e]very
construction project in America going back to the 1800s,
1700s used cut and fill.” Id. at 71-73, 80,
130. Dr. Browne also opined that, as part of
the cut and fill, B&O would have created depressed swales on
either side of the track and a raised berm along the northern
edge of the right-of-way. See Trial Tr. 72, Dec. 15,
2015; Ex. 2, figure 3 (conceptual view depicting the
construction of the railroad as creating defined swales on
either side of the track and a high point at the northern
edge of the right-of-way).
on the foregoing assumptions about how the track was
constructed, Dr. Browne further opined that the construction
of the track would have changed the flow of storm water in
the area in question. See Id. at 72-73. In Dr.
Browne's conceptual view, water on the south side of the
right-of-way would have continued to flow from south to north
along the natural slope of the land. See id.; Ex. 2,
figure 3. Upon reaching the right-of-way, however, the water
would have flowed in the swales along the track from west to
east. See Trial Tr. 72-73, Dec. 15, 2015; Ex. 2,
aspects of Dr. Browne's testimony are plausible, his
theory as to how construction of the railroad track changed
the flow of storm water rests on numerous assumptions that
lack evidentiary support in the record and are beyond the
scope of his expertise. Given this lack of evidentiary
support, the Court finds Dr. Browne's theory as a whole
to be speculative and therefore declines to credit it.
Browne's opinion regarding the slope and flow of water in
the area in question before the track was built is based
entirely on the 1898 USGS map. While the map enabled Dr.
Browne to determine an approximate historic grade of the
general area depicted, Dr. Browne himself acknowledged the
limitations of the USGS data, conceding he could not say,
based on those data, whether the slope “at the actual
point where the tracks [we]re done” was constant, and
that the stretch of land where the railroad was constructed
“could've been flat” or “could've
been more hilly” than depicted in his pre-track
conceptual view. Trial Tr. 125, Dec. 15, 2015. Thus, although
the Court accepts as credible Dr. Browne's opinion that,
overall, the land in the area in question likely had a mild
downward slope from south to north, because, by Dr.
Browne's own admission, the slope on what became the
right-of-way could have been different from his approximate
historic grade, his testimony falls short of establishing the
actual historic flow of water along the land now occupied by
Browne's opinion that construction of the railroad
changed the flow of water rests on assumptions about how the
track was constructed in the late 1800s, an area in which he
admittedly has no expertise. See Trial Tr. 80, 130,
Dec. 15, 2015. Dr. Browne's post-track conceptual view
assumes, for example, that the railroad changed the grade
along the width of the right-of-way using a cut and fill
technique. If, in fact, the land sloped downward, it makes
sense the railroad may have had to alter the slope to some
degree to create a level surface for the track. Because there
is no evidence regarding the actual slope along the
right-of-way, however, it is impossible to say whether or to
what extent such alteration would have been required. Even
under Dr. Browne's own conceptual view, it seems unlikely
significant excavation would have been required, given the
extremely mild grade in the area-which Dr. Browne agreed
would have been the equivalent of a vertical drop of only
“a few inches” across the 30 to 40 foot width of
the right-of-way. See Trial Tr. 124, Dec. 15,
2015. Notably, even today, the surface of the right-of-way is
generally slightly lower on the north side than on the south
side. See Ex. 8, sheets 1-3.
Browne's post-track conceptual view also assumes that, as
part of the cut and fill, the railroad would have created
depressed swales on either side of the track and a berm along
the northern edge of the right-of-way, yet he offered no
reason for this assumption. At trial, Dr. Browne admitted he
has no knowledge about the historical construction of the
railroad track, has not seen any plans reflecting how the
track was actually constructed in the late 1800s, and cannot
actually say whether a swale or ditch was created in the late
1800s. See Trial Tr. 122, Dec. 15, 2015. There is
also no evidence that a swale and berm system is inherently
part of the cut and fill technique, the purpose of which is
to create a level surface. See Id. at 73. In
particular, it is not clear why, after filling in the down
side of the slope, the railroad would have constructed a berm
along the northern edge of the right-of-way if the land to
the north was undeveloped forest land that sloped gently
downward from the right-of-way.
Dr. Browne himself has since disavowed his prior opinion that
B&O created swales and a berm when the track was installed.
At trial, Dr. Browne testified that while, in his view,
defined drainage swales should have been created
alongside the railroad track, he in fact believes swales
“never were constructed, ” Trial Tr. 126, Dec.
15, 2015, and he characterized the areas he previously
referred to as swales as simply “flat property, ”
id. at 105. As for the alleged berm, Dr. Browne
testified that, contrary to his earlier opinions, he did not
believe an actual berm was ever constructed between the
properties. See Id. at 146 (“A berm was not
constructed as a berm.”).
noted, the current flow of water on the right-of-way is
generally from higher to lower ground. To the extent that
water flows from west to east along the northern side of the
right-of-way, this flow pattern appears to be a function of
two topographical features: (1) the high point on the Mall
property, which blocks the water from going down the Mall
hill, and (2) the slight downward grade from west to east
along a portion of the low point of the right-of-way.
See Trial Tr. 109, 134, Dec. 15, 2015 (Browne)
(explaining that because the right-of-way is flat, a small
bump or high point in the right-of-way can cause water to
flow west or east). There is no evidence, however, that
construction of the track produced either of these features.
trial, Mr. Kelly conceded there is no evidence the railroad
did anything to grade the right-of-way toward South Avenue.
Trial Tr. 134, Dec. 14, 2015.
is also no evidence that the railroad created the high point
to the north of the right-of-way. Although the high point
between the properties is currently almost entirely on the
Mall property along the surveyed portion of the right-of-way,
the Mall argues it did not create the high point, citing a
site drainage plan for the Mall from the late 1960s, which
shows a series of fluctuating spot elevations along the
southern edge of the Mall property. See Ex. 19.
According to Mr. Kelly, whose father created the drainage
plan, the spot elevations reflect the then-existing
elevations along the property line in 1969, before the Mall
was constructed, and indicate that the Mall intended to
maintain the existing elevations, not to increase
them. See Trial Tr. 94-95, 102-05,
Dec. 14, 2015. The drainage plan, however, is a design
drawing; it does not show the actual elevations once the Mall
was built, and it is therefore possible that the Mall created
the high point. Moreover, even if a high point existed along
the property line in 1969, more than 70 years after the
railroad was constructed and after some development had
occurred on the land, see Ex. 3, fifth photo (June
14, 1958, photograph of the area in question, showing
clearing and development on what is now the Mall property),
there is no evidence that the railroad created the high point
when the track was constructed in the late 1800s.
Cf. Ex. 37 at 88 (Helene) (explaining that the ditch
line along the track is “often times a naturally
these reasons, the Court does not find Dr. Browne's
opinion that the construction of the railroad track in the
late 1800s changed the flow of water along the right-of-way
to be credible.
Construction of the Residential Neighborhood
point after the railroad was built, the residential
neighborhood was constructed on the upgradient land to the
south of the right-of-way. See Trial Tr. 120, Dec.
15, 2015. The construction of houses, roofs, sidewalks,
streets, and driveways in the residential neighborhood
created new impervious surfaces in what had formerly been raw
land, thereby increasing the amount of storm water flowing
onto the right-of-way. See Id. at 120-21.
Widening of South Avenue at the Railroad Crossing
mid-1960s, a few years before the Mall was built, the
Pennsylvania Department of Highways (now part of the
Pennsylvania Department of Transportation or PennDOT) made
changes to the railroad crossing at South Avenue as part of a
project to widen a portion of the street. See Ex.
53. The changes included the installation of new drainage
facilities in the area of the crossing. Two storm water
inlets were installed under the surface of the road, one on
either side of South Avenue, just south of the track,
connected by a length of 18-inch reinforced concrete pipe.
See Trial Tr. 86, Dec. 14, 2015; Trial Tr. 184,
200-01, Dec. 15, 2015. In addition, an existing pipe running
diagonally under the railroad crossing was extended to run
from the inlet on the east side of South Avenue to a ditch on
what is now the Mall property. See Trial Tr. 86,
Dec. 14, 2015; Trial Tr. 185-86, Dec. 15, 2015. After
construction of the drainage facilities, water entering the
inlet on the west side of South Avenue would be carried