MD Mall Assocs., LLC v. CSX Transp., Inc. (288 F. Supp. 3d 565, 2017)

Juan R. Sánchez, District Judge.

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

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. 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.

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, 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. 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.

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.

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 -the Mall has experienced flooding in the southeast corner of the Mall property during heavier rains.

During 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.

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. 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. 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. 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. 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. 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. 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. 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 the underground pipes first to the inlet on the east side of the street and, from there, diagonally under the railroad crossing and into the ditch on the Mall property, which at the time was used to convey storm water toward MacDade Boulevard. See Trial Tr. 86, Dec. 14, 2015.

CSX argues the clogged pipe that currently extends onto the south side of the right-of-way from the back of the inlet on the west side of South Avenue was also installed by PennDOT as part of the road-widening project. The issue is significant because the Public Utility Commission (PUC) order approving the road-widening project specifies that, upon completion of the project, B & O will "furnish all material and do all work necessary thereafter to maintain its facilities," and PennDOT will, "at its sole cost and expense, furnish all material and do all work necessary thereafter to maintain the remainder of the improvement." Ex. 53 at 12, ¶¶ 22, 24. CSX argues because PennDOT installed the pipe, the obligation to maintain the pipe belongs to PennDOT. The evidence, however, is equivocal.

The record includes both construction drawings for the road-widening project, showing the anticipated changes in the area of the railroad crossing that were approved by the PUC, see Ex. 53, and an as-built drawing, showing what was actually constructed in the area, see Ex. 18B. Both the construction and the as-built drawings show the inlets on either side of South Avenue and the pipe connecting them. The drawings also show a length of pipe extending from the back of each inlet toward the right-of-way on either side of the road. On the construction drawings, the pipe appears to extend to the right-of-way line on the west side of the street and onto the railroad right-of-way on the east side of the street. See Ex. 53; Trial Tr. 184-85, Dec. 15, 2015; Trial Tr. 80-81, Dec. 16, 2015. The as-built drawing also shows pipe extending from the back of each inlet, with the pipe from the western inlet extending to the right-of-way line, but not beyond it. See Ex. 18B; Trial Tr. 201, Dec. 15, 2015; Trial Tr. 84, Dec. 16, 2015.

Although the construction drawings contemplated the installation of 60 linear feet of 18-inch reinforced concrete pipe in the area of the inlets, the as-built drawing indicates that 49.1 feet of pipe were actually installed. See Ex. 18B. The right-of-way for South Avenue is 45 feet wide, and the street within the right-of-way measures 38 feet from curb to curb. See Trial Tr. 78, Dec. 16, 2015. Mr. Bross, CSX's expert, opined that approximately 35 or 36 feet of the 49.1 feet of pipe would have been used to connect the two inlets, explaining that although the street is 38 feet wide, the catch basins for the inlets extend beyond the curb, under the street's surface, such that the actual distance between the inlets is something less than 38 feet. Trial Tr. 203, Dec. 15, 2015; Trial Tr. 78-79, Dec. 16, 2015. Mr. Bross further opined that the remainder of the pipe-approximately 13 to 14 feet-was installed in the back of the western inlet. Trial Tr. 203-04, Dec. 15, 2015; Trial Tr. 79, Dec. 16, 2015. On cross-examination, Mr. Bross acknowledged that the construction drawings show the pipe running from right-of-way line to right-of-way line on either side of South Avenue and then extending beyond the right-of-way line on the east side of the street. Trial Tr. 80-81, Dec. 16, 2105. But he maintained there was no indication the pipe extending from the back of the eastern inlet was ever built, noting the pipe was not visible on the ground's surface and his team had not been able to find the pipe. Trial Tr. 201, 2014, Dec. 15, 2015; see also Trial Tr. 45, Dec. 17, 2015 (confirming there is no pipe coming out of the back of the eastern inlet).

Mr. Bross's theory is plausible in some respects. The actual length of the existing pipe that extends from the back of the western inlet onto CSX's property is 12 feet 5 inches, which is roughly consistent with Mr. Bross's estimate that after pipe was laid connecting the inlets, some 13 feet of pipe would have been left. See Trial Tr. 43, Dec. 17, 2105 (Kelly) (stating the length of the pipe is 12 feet 5 inches); Trial Tr. 208-09, Dec. 15, 2015 (Bross) (stating the length of the pipe, as measured by his team, is "12 feet and a few inches"). Moreover, according to Mr. Bross, when scaled, the construction drawing depicts the pipe extending from the back of the western inlet as 12 feet long. Trial Tr. 198-99, Dec. 15, 2015.

As Mr. Bross acknowledged, however, both the construction and the as-built drawings show the pipe extending from the back of the western inlet as ending at the right-of-way line for the street. See Trial Tr. 80-81, 84, Dec. 16, 2015; see also Ex. 18B; Ex. 53. Yet the more recent Kelly & Close survey of the area in question depicts the existing pipe as extending several feet onto the railroad property. Ex. 18B; Trial Tr. 67-68, 89, Dec. 14, 2015; Trial Tr. 84-85, Dec. 16, 2015 (Bross)

(agreeing that if the property line between the right-of-way for the street and the railroad right-of-way is accurately depicted on the Kelly & Close survey, then the pipe extends onto the railroad property). Mr. Bross also conceded that although the PUC Order approving the road-widening project at the railroad crossing provided for condemnation of three small parcels of land, there was no evidence of any condemnation or easement being granted to extend a pipe onto the railroad right-of-way at the southwest corner of the railroad crossing, where the pipe in question currently sits. See Trial Tr. 85-89, Dec. 16, 2015; Ex. 53. In addition, while the construction and as-built drawings show installation of 18-inch reinforced concrete pipe in the area of the inlets, the pipe extending from the back of the western inlet is not an 18-inch pipe for its entire length. Rather, for reasons that are not explained in the record, the diameter of the pipe measures only 15 inches at the face of the inlet then broadens to 18 inches at the end on the railroad right-of-way. See Trial Tr. 38, Dec. 17, 2015 (Kelly).

Although the evidence suggests that some pipe was installed in the back of the western inlet as part of the road-widening project, it does not establish that the pipe extended onto CSX's property at that time. It is not clear from the record whether the pipe that currently extends from the inlet onto the railroad right-of-way was installed in 1965, is an extension of what was installed in 1965, or is a different pipe altogether. Nor is it clear who installed the pipe. Mr. Kelly believes the pipe is CSX's responsibility because it extends onto CSX's property, see Trial Tr. 77, Dec. 14, 2015, but he conceded there is no evidence that CSX ever obtained authorization to install a pipe into the public inlet, id. at 130, and that, in fact, he has no evidence as to who installed the pipe, id. at 127. Moreover, while the pipe extends onto CSX's property, it is not depicted on a right-of-way and track map plotted by CSX in 2011, see Ex. 17, and it is not even clear that Mr. Lackford, a CSX roadmaster whose territory has included the stretch of the track in question since 1989, was aware of the pipe's existence prior to this litigation, see Ex. 42 at 17, 68, 132-33 (stating he was unaware of the inlet on the south side of the track and did not know water on the south side went into the public storm water system). Thus, while CSX has not proved that PennDOT installed the pipe as part of the road-widening project, the Mall has not proved that CSX or its predecessor installed the pipe.

4. Construction of the Mall

In 1969, the Mall was built on the property to the north of the right-of-way. See Trial Tr. 95, Dec. 14, 2015.

During construction of the Mall, equipment was used to cut into the slope on the Mall property adjacent to the right-of-way, creating a hill down from the right-of-way and a flat surface for the Mall. See Trial Tr. 105-06, 108, Dec. 14, 2015. The slope of the Mall hill is significantly steeper than the historic slope of the land, according to Dr. Browne's conceptual view.

According to Mr. Kelly, the site drainage plan for the Mall indicates that the Mall intended to maintain the pre-existing elevation at the property line with the right-of-way, see Trial Tr. 103-05, Dec. 14, 2015, though there is no evidence as to whether construction of the Mall altered the ground along the property line.

When the Mall was constructed, a new storm water system was installed to redirect the water that was previously carried under the railroad crossing and into a ditch on the Mall property into a system of underground pipes. A series of five inlets, connected by pipes, was installed in the flat surface along the southern edge of the Mall property, with the easternmost inlet connecting to the pipe running diagonally under the railroad crossing. See Ex. 19; Trial Tr. 95, 97-98, Dec. 14, 2015. Water flowing into the inlets was directed to a central inlet and from there was conveyed northward, under the Mall property, to MacDade Boulevard. Trial Tr. 95-96, Dec. 14, 2015. Upon reaching MacDade Boulevard, the water was conveyed eastward in the existing PennDOT storm water system in MacDade Boulevard, which emptied into a creek a short distance away. Trial Tr. 95-96, Dec. 14, 2015. In other words, the water that previously reached the storm water system in MacDade Boulevard via the ditch at the eastern edge of the Mall property was redirected underground into the same storm water system. Trial Tr. 97-98, Dec. 14, 2015.

D. Post-Mall Maintenance of the Right-of-Way

The record contains scant evidence of any activity on the right-of-way since the Mall was built in 1969 or since CSX acquired the railroad in 1989.

From time to time, CSX performs "ditching" work along the right-of-way to pick up items blocking the ditch line on either side of the track, such as "refrigerators, washing machines, couches," and trash people discard there. See Ex. 42 at 27-29. At his deposition in 2011, Mr. Lackford testified the last time he had sent someone to ditch along the right-of-way adjacent to the Mall was five or six years earlier, i.e., in 2005 or 2006. See id. at 39-40. At that time, items such as "[r]efrigerators, couches, mattresses, large branches, trees, [and] trash" were picked up from the south side of the track. Id. at 32-33. There is no evidence that any such items are currently present on the right-of-way or are contributing to the current flooding problem.

In March and April 2009, CSX performed track maintenance work in the area adjacent to the Mall property to replace the railroad ties and resurface the track. See Ex. 37 at 46, 62-63; Ex. 42 at 46-48. The surfacing work involved installing new ballast under the ties and then tamping, or compacting, the ballast to create a smooth, level, raised surface for the track. See id. at 52-56; Ex. 37 at 63-65.

Based on his review of Mr. Lackford's deposition testimony regarding the 2009 track maintenance work and photographs of the right-of-way taken after the track work was performed, Dr. Browne opined that when new ballast was installed under the track as part of the surfacing work, the existing ballast was spread to the sides of the track. See Trial Tr. 87-88, 90-91, 99, Dec. 15, 2015. Dr. Browne further opined that the older ballast would have become "fouled" from years of exposure to oil and grease from the trains and that by spreading the fouled ballast along the right-of-way, CSX increased the impervious area of the right-of-way, made the area flatter, and "probably cause[d] a faster flow" in thunderstorm-type rains. See id. at 87, 91, 99. In fact, Dr. Browne opined that the spreading of the ballast along the right-of-way was what "probably tipped the bucket" and caused flash flooding and erosion on the Mall property. See id. at 91-92.

Dr. Browne's opinions regarding the effect of the spreading of old ballast along the right-of-way are speculative. Although Dr. Browne testified that CSX would have replaced the fouled ballast because it was "not infiltrating the way they like it," id. at 87, Mr. Lackford, whose deposition testimony was the source of Dr. Browne's understanding of the track maintenance work, said nothing about infiltration-or fouled ballast for that matter, and Dr. Browne conceded that, not being a railroad expert, he does not know why CSX replaced it, see id. Further, while Dr. Browne's theory is that the fouled ballast prevented water from infiltrating into the right-of-way and increased the velocity of water flowing from west to east on the north side of the right-of-way, there is no indication Dr. Browne examined ballast from the site or made any effort to measure the differences in flow and infiltration rates between the fouled and new ballast. Because the Court finds Dr. Browne's opinions speculative, the Court does not credit them.

E. Efforts to Address the Flooding Problem and Initiation of Litigation

At trial, Mr. Fiore, the Mall's property manager, and Mr. Wolfson, a principal in the partnership that owns the Mall, testified that they first became aware of storm water issues at the Mall after a late-October 2010 rain event, during which a large amount of water came onto the Mall parking lot from the right-of-way through an eroded area in the hill on the Mall property. See Trial Tr. 6-7, Dec. 15, 2015; id. at 55.

Although Mr. Wolfson and Mr. Fiore may have been unaware of any flooding prior to October 2010, there is evidence that flooding may have occurred in earlier years. A photograph from June 2006, several months before Mr. Fiore became the Mall's property manager, shows flooding in the Mall parking lot, a rock-filled channel along the hill from the right-of-way to the parking lot, and broken curb at the base of the parking lot in what appears to be the same area depicted in photographs of the October 2010 rain event. See Ex. 58; Trial Tr. 215, Dec. 16, 2015 (Bross) (explaining that the eroded area depicted on Exhibit 58 is the same eroded area where flooding occurred in 2010). While the photograph does not appear to show water flowing from the right-of-way into the Mall parking lot, it nevertheless suggests storm water from the right-of-way may have caused flooding on the Mall property in earlier years. See Trial Tr. 140-41, Dec. 15, 2015 (Browne) (acknowledging a large storm or a high intensity storm could have caused the flooding depicted in Exhibit 58).

On January 13, 2011, after an unsuccessful attempt to contact CSX about the flooding problem by email, a representative of the Mall contacted CSX about the problem by certified mail and requested that someone from CSX contact him to discuss a solution. Ex. 26; see also Ex. 24.

After confirming that water was, in fact, flowing along the right-of-way and then down the eroded area onto the Mall parking lot, CSX staff engineer Jeremy Helene evaluated potential options to remedy the problem. See Ex. 37 at 117-19, 140. On January 20, 2011, Mr. Helene advised the Mall that CSX had identified two potential solutions: (1) "[d]itch along this area and block the hill leading to the property, allowing the water to flow into the road and down to the storm drain," and (2) "[t]ear up the road crossing and install a culvert under the road to send the water towards a bridge that goes over a creek and drain into the creek." Ex. 28. Mr. Helene noted the first option was "[t]he more likely..., due to cost constraints" and stated CSX would notify its local maintenance of way managers that the project would need to be completed in a timely fashion. Id.

Mr. Helene later determined, after consulting with Mr. Lackford or Steve Shipley, a CSX maintenance of way manager, that the potential solutions mentioned in his January 20, 2011, email were not feasible. See Ex. 37 at 164-65, 177-78. Mr. Lackford recommended that CSX either install riprap in the eroded area on the Mall property or build a concrete spillway along that area. See Ex. 42 at 72, 84-85, 88. While these solutions would not stop water from going down the hill, they would slow the flow of the water and keep mud and debris from washing onto the Mall parking lot. See id. at 72, 85-86, 128. Although Mr. Helene advised a representative of the Mall in January 2011 that CSX was considering the option of pouring a concrete trough to divert the water, he did not indicate this potential solution involved installing a trough on the Mall property. See Ex. 37 at 163-64, 175.

In April 2011, CSX personnel came onto the Mall property and began work on the concrete spillway, digging out and regrading the eroded area and installing wooden forms to create the spillway. See Trial Tr. 10, Dec. 15, 2015.

By letter dated April 19, 2011, the Mall objected that CSX's construction of the spillway was unauthorized, directed that CSX cease all work relating to the storm water issues at the Mall property, and notified CSX that it had forwarded the matter to its legal counsel. Ex. 30.

CSX thereafter cleaned the Mall parking lot and storm drain, removed the wood forms that had been constructed, and, with the Mall's permission, installed riprap along the length of the cleaned out channel. See Trial Tr. 17, Dec. 15, 2015. The Mall allowed riprap to be installed as an interim measure to prevent further erosion and damage to the Mall property, but continued to request that CSX implement a permanent solution, as the riprap would not prevent water from coming onto the Mall property. Id. at 17-18.

In May 2011, CSX's manager of environmental remediation, William Parry, contacted Arcadis US, Inc., an engineering firm from which CSX seeks technical support from time to time pursuant to a master agreement between the parties, and requested that Arcadis evaluate the Mall's complaint regarding storm water runoff from CSX's right-of-way. See Ex. 16 ¶ 1; Ex. 41 at 35-37, 42, 45, 47. In early June 2011, an Arcadis field engineer confirmed that water was coming from CSX's property onto the Mall property. Ex. 16 ¶¶ 2-5. When asked about potential solutions to the problem, senior Arcadis engineer Michael Kleczkowski suggested one potential solution would be to install a drainage pipe on CSX's property to divert the water away from the Mall property and into the public storm water system along South Avenue. Id. ¶ 6. Mr. Kleczkowski estimated the rough cost for installing such a pipe at $50,000, id. ¶ 7, though this estimate was not a hard number, Ex. 41 at 105.

Mr. Kleczkowski advised Mr. Parry that to be able to further evaluate the potential solutions he had identified, Arcadis would need a good topographic map of the area. Id. at 78. Although Arcadis retained a surveyor to prepare a topographic map, id. , the survey was not completed until November 2011, see id. at 86, by which time the parties were already enmeshed in this litigation.

The parties dispute the feasibility of installing a drainage pipe on the north side of the right-of-way, as proposed by Arcadis.

It is undisputed that implementing this potential solution would require CSX to obtain certain regulatory approvals. Experts for both parties agree that for CSX to direct storm water from the north side of the right-of-way into the public storm water system in South Avenue, it would have to obtain a grading and/or road opening permit from Glenolden Borough and a road opening permit from PennDOT. See Trial Tr. 56, 60, 130, Dec. 14, 2015; Trial Tr. 66-67, Dec. 16, 2015. Mr. Kelly testified that a conservation district permit could also be required. See Trial Tr. 60, Dec. 14, 2015. Mr. Bross opined that this option might also require approval from the Federal Emergency Management Agency (FEMA) because the affected area is in a mapped 100-year floodplain. See Trial Tr. 24, Dec. 16, 2015. Mr. Kelly, however, disputes that FEMA approval would be required for the type of inlet and piping system Arcadis contemplated under the existing floodplain ordinance. See Trial Tr. 39-40, Dec. 17, 2015.

In Mr. Kelly's view, obtaining the necessary regulatory approvals does not pose an insuperable obstacle because the water CSX would be seeking to pipe into the existing storm water system is already traveling to the same ultimate point of discharge-i.e., the creek into which the storm water system in MacDade Boulevard discharges-via the existing storm water system. See Trial Tr. 58-59, 63-64, Dec. 14, 2014. As Mr. Kelly explained, whether water from the north side of the right-of-way flows onto the Mall parking lot and into inlets on the Mall property which convey the water toward MacDade Boulevard, or is piped into the existing storm water system via another inlet in South Avenue, the same water will ultimately end up in the same creek. See id. at 58-59, 62-64. Mr. Kelly thus opined, based on his experience obtaining PennDOT highway occupancy permits for connections to storm water systems, that the permitting required to implement the Arcadis solution was "reasonable" and "doable." Id. at 63.

Mr. Bross, in contrast, characterized the permitting as a "daunting task," whose likelihood of success was uncertain at best. See Trial Tr. 23-24, Dec. 16, 2015. Mr. Bross also opined that for CSX to be able to tie into the existing structures "wherever they may be," it would likely have to upgrade the size and capacity of the system, which would cost well more than the $50,000 Arcadis estimate. See id. at 24-25.

While the parties vigorously dispute the likelihood that CSX could obtain the necessary regulatory approvals, there is no evidence either side has investigated the issue in any meaningful way. See id. at 66 (concession by Mr. Bross that he has not contacted most of the relevant regulatory bodies about the feasibility of the Arcadis solution).

DISCUSSION AND CONCLUSIONS OF LAW

Pennsylvania common law has long recognized the right of an upper landowner "to have surface waters flowing on or over his land discharged through a natural water course onto the land of another." Shamnoski v. PG Energy , 579 Pa. 652, 858 A.2d 589, 605 (2004) (quoting Lucas v. Ford , 363 Pa. 153, 69 A.2d 114, 115 (1949) ). As the Pennsylvania Supreme Court held more than a century ago, "[b]ecause water is descendible by nature, the owner of a dominant or superior heritage has an easement in the servient or inferior tenement for the discharge of all waters which by nature rise in or flow or fall upon the superior." Chamberlin v. Ciaffoni , 373 Pa. 430, 96 A.2d 140, 142 (1953) (quoting Kauffman v. Griesemer , 26 Pa. 407, 413 (1856) ).

The Supreme Court has characterized the upper landowner's right to discharge water on the lower land of his neighbor as, "in general, a right of flowage only, in the natural ways and natural quantities." Pfeiffer v. Brown , 165 Pa. 267, 30 A. 844, 845 (1895). Yet, the Supreme Court has also made clear that not all changes made by an upper landowner that affect the flow of surface water onto the lower land will subject the upper landowner to liability. An upper landowner "may make proper and profitable use of his land even though such use may result in some change in quality or quantity of the water flowing to the lower land," so long as the change is reasonable in relation to the use. See Lucas , 69 A.2d at 116. The upper landowner may "make improvements upon his own land, especially in the development of urban property, grade it and build upon it, without liability for any incidental effect upon adjoining property even though there may result some additional flow of surface water thereon through a natural watercourse." Rau v. Wilden Acres, Inc. , 376 Pa. 493, 103 A.2d 422, 423 (1954).

The upper landowner's right of flowage is subject to two exceptions. First, the upper landowner may not "alter the natural flow of surface water on his property by concentrating it [in] an artificial channel and discharging it upon the lower land of his neighbor even though no more water is thereby collected than would naturally have flowed upon the neighbor's land in a diffused condition." Id. ; see also Lucas , 69 A.2d at 116. Second, the upper landowner may not "unreasonably or unnecessarily" change the quality or quantity of the water discharged on the lower land. See Lucas , 69 A.2d at 116. To impose liability on an upper landowner for the effects of surface water runoff on a lower-lying property, the lower landowner must show one of these exceptions applies-that the upper landowner either "diverted the water from its natural channel by artificial means, or...unreasonably or unnecessarily increased the quantity (or changed the quality) of water discharged upon his neighbor." LaForm v. Bethlehem Twp. , 346 Pa.Super. 512, 499 A.2d 1373, 1378, 1383 (1985) (citations omitted); see also Bretz v. Cent. Bucks Sch. Dist. , 86 A.3d 306, 316 (Pa. Commw. Ct. 2014) ; Florimonte v. Borough of Dalton , No. 987 C.D. 2012, 2013 WL 3973727, at *6, *8-10 (Pa. Commw. Ct. Apr. 4, 2013) ; Fazio v. Fegley Oil Co. , 714 A.2d 510, 513 (Pa. Commw. Ct. 1998).

Even where the lower landowner shows the upper landowner has "alter[ed] the natural conditions so as to change the course of the water, or concentrate it at a particular point, or by artificial means to increase its volume," the upper landowner may avoid liability for injury caused thereby if he shows that the use that inflicted the damage was "natural, proper, and free from negligence, and the damage unavoidable." Pfeiffer , 30 A. at 845 (quoting Collins v. Chartiers Valley Gas Co. , 131 Pa. 143, 159, 18 A. 1012 (1890) ). The Pennsylvania Supreme Court has long recognized that "[e]very man has the right to the natural use and enjoyment of his own property, and if, while lawfully in such use and enjoyment without negligence, an unavoidable loss occurs to his neighbor, it is damnum absque injuria [i.e., loss without injury]." Id. (quoting Pa. Coal Co. v. Sanderson , 113 Pa. 126, 6 A. 453, 457 (1886) ). To avail himself of this exception to liability, the upper landowner must show that "the damage was necessary and unavoidable" and that it could not be prevented by "reasonable care and expenditure." Id. (quoting Collins , 131 Pa. at 159, 18 A. 1012 ); see also Clouse v. Crow , 68 Pa.Super. 248, 256 (Pa. Super. Ct. 1917).

These same principles generally apply where, as here, the upper landowner is a railroad. The Pennsylvania courts have recognized that a railroad, like any other landowner, may be liable for causing "a diversion of the surface water from its natural course" or for "cut[ting] an artificial channel, by which what would otherwise be surface water is concentrated and discharged with greater force at a particular point on the servient land." Kuczineski v. Scranton Coal Co. , 99 Pa.Super. 20, 24 (Pa. Super. Ct. 1930) ; see also Toole v. Del. Lackawanna & W. R.R. , 27 Pa.Super. 577, 580 (Pa. Super. Ct. 1905) (railroad held liable for collecting water from hillside above it through chutes into a ditch alongside the railroad and discharging it through a pipe under the right-of-way onto a public highway, from which it flowed onto plaintiff's property); cf. White v. Phila. & Reading Ry. Co. , 46 Pa.Super. 372, 375 (Pa. Super. Ct. 1910) (stressing, in holding the defendant railroad company was not liable for flooding an adjacent property owner's basement, the absence of any evidence "indicating that the defendant company had done anything which tended to collect the surface water and discharge it upon plaintiff's land").

Similarly, a railroad, like any other landowner, "has the right to the natural, proper and profitable use of [its] own land, and if in the course of such use, without negligence, unavoidable loss is brought upon his neighbor, it is damnum absque injuria." Kuczineski , 99 Pa.Super. at 24 (citing Strauss v. City of Allentown , 215 Pa. 96, 63 A. 1073, 1073 (1906) ); White , 46 Pa.Super. at 378. At least where the railroad company acquires its right of way from the owner of the adjacent property on which flooding later occurs, the acquisition of the right of way includes the right of the company "to construct its line at the natural grade of the surface, or above or below the same," which "necessarily entails the right to interfere with the natural flow of the water, resulting from rains or melting snow."

White , 46 Pa.Super. at 374-75 ; see also Flaherty v. Pittsburgh, Cincinnati, Chicago & St. Louis Ry. Co. , 63 Pa.Super. 622, 623 (Pa. Super. Ct. 1916). Where the diversion of water onto the adjacent land is "the necessary consequence of the construction and maintenance of the road, a[n] [adjacent] landowner cannot recover in the absence of anything to show that the railroad company has been guilty of some unlawful act or of negligence in the construction and maintenance of its line." Flaherty , 63 Pa.Super. at 623 ; White , 46 Pa.Super. at 375 ; cf. Updegrove , 19 A. 283 (holding a railroad was not liable for flooding that occurred as a result of the railroad's construction of a ditch and culvert which allegedly threw water on the plaintiff's land which would not have otherwise flowed there, where the ditches and culvert and the discharge of water were found to be "the necessary result" of the railroad company's construction of the road).

The Mall argues CSX is liable for the flooding on the Mall property under two different legal theories: continuing trespass and negligence. Consistent with the common law principles discussed above, to prevail on either theory, the Mall must show CSX (or its predecessor) either "diverted the water from its natural channel by artificial means[,] or ...unreasonably or unnecessarily increased the quantity or changed the quality of water discharged" on the Mall property. Bretz , 86 A.3d at 316 (continuing trespass); see also LaForm , 499 A.2d at 1383 (negligence).

A. Continuing Trespass

Pennsylvania follows the Second Restatement of Torts with respect to claims for trespass and continuing trespass. See Gilbert v. Synagro Central, LLC , 90 A.3d 37, 52 (Pa. Super. Ct. 2014), aff'd in part and rev'd in part on other grounds , 634 Pa. 651, 131 A.3d 1 (2015) ; Florimonte , 2013 WL 3973727, at *8. Under the Restatement, a person may be liable for trespass "if he intentionally...enters land in the possession of [another], or causes a thing or a third person to do so." Restatement (Second) of Torts § 158(a) (Am. Law Inst. 1965). Where, as here, the alleged trespass consists of causing entry of a thing on the property of another, "it is not necessary that the foreign matter should be thrown directly and immediately upon the other's land." Gilbert , 90 A.3d at 52 (quoting Restatement (Second) of Torts § 158 cmt. i). Rather, liability may be found where the actor does an act "with knowledge that it will to a substantial certainty result in the entry of the foreign matter." Id. ; see also Restatement (Second) of Torts cmt. i & illus. 3 (observing that one who "so builds an embankment that during ordinary rainfalls the dirt from it is washed upon adjacent lands," or who "erects a dam across a stream, thereby intentionally causing the water to back up and flood the land of...an upper riparian proprietor" is a trespasser).

An actor may be liable for continuing trespass based on the "continued presence on the land of a thing 'which the actor has tortiously placed there, whether or not the actor has the ability to remove it,' or 'which the actor's predecessor in legal interest therein has tortiously placed there, if the actor, having acquired his legal interest in the thing with knowledge of such tortious conduct or having thereafter learned of it, fails to remove the thing.' " Florimonte , 2013 WL 3973727, at *8 (quoting Restatement (Second) of Torts § 161 ). An actor's "failure to remove from land in the possession of another a structure, chattel, or other thing which he has tortiously erected or placed on the land constitutes a continuing trespass for the entire time during which the thing is wrongfully on the land." Restatement (Second) of Torts § 161 cmt. b; see also id. § 161 cmt. b, illus. 1 (explaining a party's erection of a dam on his property, which causes water to back up on an adjacent property, "is a trespass, which continues so long as [the party] maintains his dam in such a way as to flood [the adjacent] land").

The Mall argues CSX is liable for continuing storm water trespass because its predecessor "changed the original course of storm water [on the right-of-way] from sheet flow running south to north to directed flow running west to east," and because CSX currently "channels storm water in the swales on either side of the track and then point discharges the storm water from the north side onto the Mall property." Pl.'s Proposed Findings ¶¶ 108-09. Although the Mall suggests the change in flow and channeling are independent bases on which to hold CSX liable for continuing storm water trespass, the Court views these allegations as parts of a single theory as to how the Mall is tortiously causing water to go onto the Mall property-namely that in constructing the railroad in the late 1800s, CSX's predecessor changed the natural flow of surface wa