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2. “If
the moving party makes a properly supported motion for summary judgment and can
show by affirmative evidence that there is no genuine issue of a material fact,
the burden of production shifts to the nonmoving party who must either (1) rehabilitate
the evidence attacked by the moving party, (2) produce additional evidence showing
the existence of a genuine issue for trial, or (3) submit an affidavit explaining
why further discovery is necessary as provided in Rule 56(f) of the West Virginia
Rules of Civil Procedure.” Syllabus Point 3, Williams v. Precision Coil,
Inc., 194 W.Va. 52, 459 S.E.2d 329 (1995).
Per Curiam:
Appellants
Ulrika Browning, Timothy Higgins, and Wendy Higgins, appeal the October 6, 2004,
order of the Circuit Court of Upshur County that granted summary judgment to
Appellees, Judith Halle and Andreas Halle, in Appellants' action against Appellees
for nuisance, interference with riparian rights, and negligence. For the reasons
that follow, we affirm the circuit court's order.
Appellants alleged that Appellees' use of their property for timbering and
other activities have adversely affected the purity, quality, and quantity
of water flowing through Laurel Run and upon Appellants' property. They further
averred that Appellees' use of their property has interfered with Appellants'
quiet enjoyment of their land, and that Appellees' negligence caused damage
to their land.
On September
7, 2004, Appellees filed a motion for summary judgment with an attached memorandum
of law and exhibits. Subsequently, on September 13, 2004, Appellants filed a
response in opposition to Appellees' motion for summary judgment with attached
exhibits. After a hearing on the motion, the circuit court entered its October
6, 2004, order granting summary judgment to Appellees.
Thereafter,
Appellants filed a motion for relief from the summary judgment order, accompanied
by additional exhibits, which apparently was never ruled upon by the circuit
court. (See footnote 1) Appellants
ultimately filed their petition for appeal from the summary judgment order which
was granted by this Court. We now consider the issues raised by Appellants in
their petition.
As
a general rule, a fair test as to whether a business or
a particular use of a property in connection with the operation of the business
constitutes a nuisance, is the reasonableness or unreasonableness of the operation
or use in relation to the particular locality and under all the existing circumstances.
Syllabus Point 2, Mahoney v. Walter, 157 W.Va. 882, 205 S.E.2d 692 (1974).
With
respect to Appellants' cause of action for interference with riparian rights,
this Court has explained:
The riparian owner has a property interest in the flow of a natural watercourse through or adjacent to his property.
The
right of enjoying this flow without disturbance, interference, or material diminution
by any other proprietor is a natural right, and is an incident of property in
the land, like the right the proprietor has to enjoy the soil itself without
molestation from his neighbors. The right of property is in the right to use
the flow, and not in the specific water.
The
riparian owner's right is to have the water pass his land in its natural course.
Each proprietor may make any use of the water flowing over his premises which
does not essentially or materially diminish the quantity, corrupt the quality
or detain it so as to deprive other proprietors or the public of a fair and reasonable
participation in its benefits. The obstruction or diversion of the natural watercourse
or the introduction into it of sediment, sludge, refuse or other materials which
corrupt the quality of the water by upper riparian owners or users constitutes
an infringement of the lower riparian owner's property right, which may be enjoined
or give rise to a cause of action for damages.
Snyder v. Callaghan, 168 W.Va. 265, 271-272, 284 S.E.2d 241, 246 (1981)
(internal quotations and citations omitted).
Finally,
in regard to a cause of action for negligence, our law states that “[i]n
the matters of negligence, liability attaches to a wrongdoer . . . because of
a breach of duty which results in an injury to others.” Syllabus Point 2, Sewell
v. Gregory, 179 W.Va. 585, 371 S.E.2d 82 (1988).
The
ultimate test of the existence of a duty to use care is found in the foreseeability
that harm may result if it is not exercised. The test is, would the ordinary
man in the defendant's position, knowing what he knew or should have known, anticipate
that harm of the general nature of that suffered was likely to result?
Syllabus Point 3, Sewell, supra.
Appellants
essentially allege that they traditionally have used the waters of Laurel Run
for drinking, domestic, agricultural and other purposes. They further aver that
Appellees' timbering, construction, and other activities have adversely affected
the color, drinking purity, and watershed and flood mitigation qualities of Laurel
Run. Specifically, Appellants claim that Appellees' activities have caused increased
sedimentation and increased fecal coliform contamination. According to Appellants,
as a result of the harm caused to Laurel Run by Appellees' activities, they have
had to acquire alternative sources for their traditional uses of the creek, they
have experienced substantial and unusual flooding, and they have had to obtain
flood insurance.
To support
their claim that Appellees damaged Laurel Run, Appellants
presented the reports of two experts, Rick Eades and Dr. Benjamin Stout. Mr.
Eades reported that, after observing conditions on Appellees' property, that
Appellees' timber harvesting activities contributed to unusual sediment loads
in Laurel Run during storms. He further stated that there were sources on Appellees'
property for fecal coliform contamination of surface waters. In his report,
Dr. Stout opined that several fecal coliform samples taken from Laurel Run
during a one-day heavy rainfall event indicated increasing fecal coliform that
is indicative of deteriorating surface water conditions from the headwaters
to the mouth of the tributary draining Appellees' farm. He further reported
that this contamination extended well into Laurel Run.
Attached
to Appellees' motion for summary judgment were portions of transcripts in which
Appellees' expert witnesses opined that Appellees' timbering practices did not
substantially contribute to sediment loading of Laurel Run. Appellees also attacked
the evidence proffered by Appellants. Specifically, Appellees presented a portion
of Dr. Stout's deposition testimony in which he testified that reclamation measures
following the timbering activities on Appellees' property had substantially eliminated
sediment run-off into the stream, and that there are other sources, besides that
of Appellees' timbering activities, that account for sediment run-off into Laurel
Run. Appellees also offered a portion of Mr. Eades' deposition testimony in which
he stated that his assessment of sediment run-off into Laurel Run did not include
an investigation of other sources of sedimentation.
Further,
on the issue of fecal coliform contamination, Appellees presented findings of
the State Department of Environmental Protection (hereafter “DEP”),
after sampling the Laurel Run watershed, that residential, agricultural, and
other activity in the area are not significant sources of fecal coliform during
the sampling period. They also introduced the report of Dr. Laidley Eli McCoy
who concluded after sampling that the fecal coliform levels in the stream water
coming from Appellees' property were within permitted levels under State Water
Quality Standards and did not render the stream water unfit for any designated
use. Further, Appellees presented evidence that Dr. Stout's limited sampling
for fecal coliform levels did not conform to the sampling required under State
Water Quality Standards. Finally, Appellees' adduced evidence that all experts
in this case agreed that Appellants' use of raw stream water from Laurel Run
for drinking and other domestic uses is unsafe due to the presence of naturally
occurring animal fecal material and other organisms in untreated stream water.
We find
that Appellees' made a properly supported motion for summary judgment below and
showed by affirmative evidence that there is no genuine issue of material fact
that Appellees' activities on their property did not introduce sediment and fecal
coliform into Laurel Run so as to materially increase the stream's quantity or
materially diminish its quality for any reasonable uses of the stream by Appellants.
We have held that,
If
the moving party makes a properly supported motion for summary judgment and can
show by affirmative evidence that there is no genuine issue of a material fact,
the burden of
production shifts to the nonmoving party who must either (1) rehabilitate the
evidence attacked by the moving party, (2) produce additional evidence showing
the existence of a genuine issue for trial, or (3) submit an affidavit explaining
why further discovery is necessary as provided in Rule 56(f) of the West Virginia
Rules of Civil Procedure.
Syllabus Point 3, Williams v. Precision Coil, Inc., 194 W.Va. 52, 459
S.E.2d 329 (1995). Thus, after Appellees made their properly supported motion
for summary judgment, the burden shifted to Appellants' to rehabilitate their
evidence, produce additional evidence, or submit an affidavit explaining the
need for further discovery, none of which Appellants successfully did.
The record
indicates that Appellants, in response to Appellees' motion for summary judgment,
produced Mrs. Halle's deposition testimony that she had the drain to the concrete
floor of Appellees' barn plumbed into their Mighty Mac home areation human waste
treatment unit. This unit treats human waste and discharges treated effluent
into the Laurel Run stream. Appellants also presented the deposition testimony
of Randy Reger, the manufacturer and installer of the unit, that to run animal
waste through the unit would compromise its operation and discharge effluent
that would degrade the quality of the water in the stream. We find, however,
that this additional evidence is insufficient to show a genuine issue of material
fact for trial on the issue of actual injury to Laurel Run. As noted above, Appellees
had already established by competent evidence that they had not materially diminished
the quality of Laurel Run for reasonable uses. Absent evidence of material harm
to the stream, evidence of Appellees' improper use of their waste treatment
unit is irrelevant.
In their
brief to this Court, Appellants assert that the verified allegations in their
complaint are sufficient to withstand a summary judgment motion. This Court has
indicated previously that a verified complaint is a sworn statement which may
create questions of fact when considered in opposition to an affidavit filed
by a party moving for summary judgment. Foster v. Good Shepherd Interfaith
Vol., 202 W.Va. 81, 502 S.E.2d 178 (1998). However, in the instant case,
Appellees presented evidence directly contradicting the allegations in Appellants'
complaint that Appellees' activities caused increased sedimentation and fecal
coliform contamination into Laurel Run that materially interfered with Appellants'
reasonable use of the stream. At that point, it was incumbent upon Appellees
to adduce evidence to counter Appellees' evidence and raise a genuine issue of
material fact which Appellants failed to do. Thus, the verified allegations in
their complaint are not sufficient to withstand summary judgment under the facts
of this case. (See footnote
3)
In addition,
Appellants assert that there is conflicting evidence concerning whether Appellees'
timbering practices adhered to best management practices under forestry
guidelines and whether there were sources of potential fecal cloriform contamination
on Appellees' property. While this may be true, such evidence simply is not
pertinent absent evidence that Appellees' activities materially increased sedimentation
and fecal cloriform contamination in Laurel Run.
Appellants
also assign as error the circuit court's finding that Appellants' historic use
of the raw waters of Laurel Run for drinking and domestic purposes was unreasonable.
According to Appellants, they have drunk the water for decades without any apparent
harm and now they cannot drink the water because of Appellees' contamination
of the stream. We reject this argument. The experts below agreed that Appellants'
use of raw stream water for drinking and other domestic purposes is unsafe because
of the presence of naturally occurring animal fecal matter and other organisms
in the stream water. In light of this evidence, we do not believe that the circuit
court erred in finding that Appellants' use of Laurel Run for drinking and other
domestic purposes was not a reasonable one.
Therefore,
based on the above, we find that Appellants have failed to present sufficient
evidence to indicate that the facts are in dispute on the issue of whether Appellees'
use of their property resulted in a material increase in sedimentation and contamination
of Laurel Run. “[T]he party opposing summary judgment must satisfy the burden
of proof by offering more than a mere 'scintilla of evidence,' and must produce
evidence sufficient for a reasonable jury to find in a nonmoving party's favor.” Painter, 192
W.Va. at 192-193 451
S.E.2d at 758-759, citing Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 252, 106 S.Ct. 2505, 2512, 91 L.Ed.2d 202, 214 (1986). We find that Appellants
failed to satisfy their burden of proof by more than a mere scintilla of evidence
and failed to produce evidence sufficient for a reasonable jury to find in
their favor on their nuisance, interference with riparian rights, and negligence
claims. Accordingly, summary judgment was proper in this case, and the circuit
court's summary judgment order is affirmed.
Appellants
further assert, however, that the circuit court erred in granting Appellees'
motion to strike Appellants' submission of additional discovery in support of
their Rule 60(b) motion for relief and for reconsideration of judgment. (See
footnote 4) As noted above, the circuit
court granted Appellees' motion for summary judgment by order entered October
6, 2004. Thereafter, on October 14, 2004, Appellants filed a motion for relief
from judgment pursuant to Rule 60(b) and, in the alternative, they asked the
circuit court to reconsider its grant of summary judgment. In support of this
motion, Appellants filed nine deposition transcripts, an affidavit of Appellant
Timothy Higgins, three videotapes, and Appellants' responses to Appellees'
first set of interrogatories. Appellees responded with a memorandum in opposition
to Appellants' motion for relief and reconsideration and with a motion to strike
Appellants' submission of additional discovery.
The circuit
court apparently did not rule on Appellants' motion for relief and reconsideration
of the circuit court's summary judgment order. Appellants filed their petition
for appeal from the summary judgment order with this Court on February 3, 2005,
and this Court granted the petition on May 9, 2005. On May 25, 2005, the circuit
court entered an order granting Appellees' motion to strike discovery without
ruling on Appellants' motion for relief and reconsideration. As a result, the
record transmitted to this Court to review for purposes of this appeal does not
contain the evidence submitted by Appellants after the summary judgment order
was entered.
We find
that the circuit court did not err in striking the evidence at issue from
the record. As noted above, Appellants filed their motion for relief under
Rule 60(b) and sought to present evidence not previously proffered. This Court
has explained,
It
is established also that a Rule 60(b) motion does not present a forum for the
consideration of evidence which was available but not offered at the original
summary judgment motion. . . . The great weight of authority is that failure
to file documents in an original motion does not convert the late filed documents
into “newly discovered evidence.” In the instant matter, the evidence
is clear that the contents of Mr. Bell's affidavit was known prior to the summary
judgment motion. In other words, the plaintiff was at liberty to raise this matter
in a properly filed response to the motion for summary judgment, which it did
not do.
Powderidge Unit Owners v. Highland Prop., 196 W.Va. 692, 706, 474 S.E.2d
872, 886 (1996) (internal citations, quotation and punctuation omitted). In
the case before us, Appellants were aware of the contents of the depositions,
affidavits, and videotapes before Appellees filed their motion for summary
judgment on September 7, 2004. Appellants could have presented this evidence
with their response to the motion for summary judgment but failed to do so.
Therefore, they were thereafter foreclosed from presenting the evidence as “newly
discovered” pursuant to Rule 60(b). Accordingly, we find no error in the
circuit court's order striking this evidence from the record.
Finally,
Appellants contend that the circuit court erred in failing to grant their “Motion
for Relief from Judgment, Or in the Alternative, to Reconsider the Court's Ruling
Granting Defendants' Motion for Summary Judgment.” First, we consider Appellants'
Rule 60(b) motion for relief. Concerning our standard of review, we have held
that “[a] motion
to vacate a judgment made pursuant to Rule 60(b), W.Va.R.C.P., is addressed
to the sound discretion of the court and the court's ruling on such motion
will not be disturbed on appeal unless there is a showing of an abuse of such
discretion.” Syllabus Point 5, Toler v. Shelton, 157 W.Va. 778,
204 S.E.2d 85 (1974). Appellants appear to base their motion on the grounds
for relief set forth in Rule 60(b)'s subsection (2) “newly discovered
evidence,” and subsection (6) “any other reason justifying relief
from the operation of the judgment.” We have already discussed above why
the evidence Appellants sought to adduce in support of their motion for relief
was not newly discovered under Rule 60(b) and was not properly before the circuit
court. Further, after reviewing Appellants' motion, we find that they have
presented no reason justifying relief from the circuit court's summary judgment
order. Instead, Appellants discuss the evidence that was untimely submitted
below. Therefore, we find that the circuit court did not err in failing to
grant Appellants Rule 60(b) motion for relief.
Appellants
also style their motion as one to reconsider the circuit court's summary judgment
order. As we have explained on previous occasions, our Rules of Civil Procedure
do not provide for a motion to reconsider a judgment. Rather, this Court has
held that,
When
a party filing a motion for reconsideration does not indicate under which West
Virginia Rule of Civil Procedure it is filing the motion, the motion will be
considered to be either a Rule 59(e) motion to alter or amend a judgment or a
Rule 60(b) motion for relief from a judgment order. If the motion is
filed within ten days of the circuit court's entry of judgment, the motion
is treated as a motion to alter or amend under Rule 59(e). If the motion is
filed outside the ten-day limit, it can only be addressed under Rule 60(b).
Syllabus Point 2, Powderidge, supra. Because the Appellants' motion
was filed within ten days of the circuit court's summary judgment order, we
will consider it a Rule 59(e) motion to alter or amend a judgment.
This
Court has held, concerning our standard of reviewing this matter, that
The
standard of review applicable to an appeal from a motion to alter or amend a
judgment, made pursuant to W.Va.R.Civ.P. 59(e), is the same standard that would
apply to the underlying judgment upon which the motion is based and from which
the appeal to this Court is filed.
Syllabus Point 1, Wickland v. American Travellers Life Ins., 204 W.Va.
430, 513 S.E.2d 657 (1998). Because the underlying judgment is a summary judgment,
we apply a de novo standard of review.
After
carefully reviewing the Appellants' motion to reconsider, we first find that
Appellants based many of their arguments on the evidence they improperly sought
to introduce after the grant of summary judgment and which this Court will not
consider. Otherwise, Appellants add nothing of substance to their original arguments
in opposition to Appellees' motion for summary judgment. Therefore, we find that
the circuit court did not err in failing to grant Appellants' motion to reconsider.
Affirmed.