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Armstrong v. Francis Corp. | 120 A.2d 4 (1956)

In property law, surface water refers to water, such as rainwater or melting snow, that collects or flows on the earth’s surface. If an upstream landowner alters the natural flow of surface water on his property and harms a landowner downstream, there are varying legal theories about whether the upstream landowner’s liable for the harm. In Armstrong versus Francis Corporation, a court considered which of these theories to apply after a homebuilder’s drainage system turned its downstream neighbors’ gentle stream into a gushing mess.

Francis Corporation owned a forty-two-acre property in Rahway, New Jersey. A stream flowed north across Francis’s property, then through a box culvert, and eventually emptied into a lake.

In the mid-twentieth century, Francis built a housing development on its property and a second housing development on an adjacent parcel. Francis constructed a drainage system for the developments, which emptied into a pipe that Francis had installed below the streambed.

The pipe generally followed the course of the streambed across Francis’s property before emptying into the box culvert. From there, the stream continued to the lake, passing between the Armstrong property and the Klemp property. Although the stream originally flowed gently between the properties, Francis’s drainage system significantly increased the water’s flow, caused it to become discolored and smelly, and created mucky silt deposits. The stream also started flooding after heavy rainstorms. The increased flow and speed of the water eroded the Armstrongs’ stream bank, causing rocks to loosen and roll downstream. These flowing rocks broke a stone culvert on the Klemps’ property.

The Armstrongs sought relief from Francis in New Jersey state court, and Francis crossclaimed against the Klemps. After a trial, the judge concluded that the erosion, silting, and flooding caused by Francis’s drainage system had harmed the Armstrongs and Klemps. The court ordered Francis to pipe the rest of the stream from the box culvert to the lake. Francis appealed, arguing that it was allowed to remove surface waters from its land as part of improving the property and wasn’t liable for the consequences of the removal. The New Jersey Supreme Court certified Francis’s appeal.

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