MD Mall Associates, LLC v. CSX Transportation, Inc.

          MEMORANDUM

          Juan R. Sánchez, J.

         This 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.

         FINDINGS OF FACT^[1]

         A. The Existing Topography of the Area in Question

         Plaintiff 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.^[2]The railroad track crosses South Avenue at a railroad crossing located just beyond the southeast corner of the Mall property.

         The 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.

         A 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.

         The 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, 128-29.

         Alongside 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.^[3]

         On 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, ^[4] 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.

         On the 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.^[5] 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”^[6]-is lined with trees and bushes.

         On the 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.^[7]

         The 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 97 feet).

         The 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.

         B. The Current Flooding Problem on the Mall Property

         Since at least 2010-and perhaps even earlier^[8]-the Mall has experienced flooding in the southeast corner of the Mall property during heavier rains.

         During significant rain events, ^[9] storm water pools in the mild depressions at the outer edges of the right-of-way on either side of the track.

         Although 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.^[10] See Id. at 33-34, 48-49.

         The 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.^[11] See Trial Tr. 73-74, Dec. 14, 2015; Trial Tr. 178, Dec. 16, 2015.

         An 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.

         Although 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. 16, 2015.

         The 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.

         A 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.

         The 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 fully credible.

         Dr. 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.^[12] 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 residential neighborhood.

         Mr. 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.

         Although 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.

         Differences 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.

         The 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.

         C. Development of the Area in Question

         1. Construction of the Railroad

         As 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 Mall property.

         Although 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.

         The railroad track now owned by CSX was constructed by the Baltimore and Ohio Railroad Company (B&O) in the late 1800s.^[13] See Ex. 17.

         The 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 heavy vegetation”).

         A 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 1.

         Based 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.

         In 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.^[14] 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).

         Based 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, figure 3.

         While 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.

         Dr. 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 the right-of-way.

         Dr. 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.^[15] 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.

         Dr. 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.

         Moreover, 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.”).

         As 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.

         At 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.

         There 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.^[16] 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 occurring thing”).

         For 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.

         2. Construction of the Residential Neighborhood

         At some 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.

         3. Widening of South Avenue at the Railroad Crossing

         In the 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 through ...