COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 59439 MARION BERICK : : Plaintiff-appellant : : JOURNAL ENTRY -vs- : AND : OPINION THOMAS NEFF, ET AL. : : Defendants-appellees : : DATE OF ANNOUNCEMENT OF DECISION: DECEMBER 5, 1991 CHARACTER OF PROCEEDING: Civil appeal from Court of Common Pleas Case No. CP-139832 JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellant: For Defendants-Appellees: JOSEPH G. BERICK, ESQ. ELLIOT S. AZOFF, ESQ. BERICK, PERELMAN & MILLS MARK R. KOBERNA, ESQ. 1350 Eaton Center BAKER & HOSTETLER 1111 Superior Avenue 3200 National City Center Cleveland, Ohio 44114 Cleveland, Ohio 44114 - 1 - DYKE, J.: Plaintiff-appellant, Marion Berick, has owned a home located at 4040 Chagrin River Road in Moreland Hills, Ohio since 1955. Plaintiff's property is located on the west side of Chagrin River Road. Defendant Metroparks, owns land on the opposite side of Chagrin River Road. The Chagrin River flows approximately 500 feet east of Chagrin River Road through the Metroparks. For the time plaintiff has owned her home her property has been subject to regular flooding. The frequency and severity of the flooding has increased in the time plaintiff has owned her home. The cause of the flooding is not in dispute. The water is surface run-off which enters plaintiff's property after heavy rains from the overflow of an open ditch which runs along the west side of Chagrin River Road and through the front of plaintiff's property. Plaintiff admitted during her deposition that her flooding and drainage problem is not the result of any conduct attributable to the defendant Metroparks and admitted that Metroparks never impeded, diverted or interfered with the flow of surface water from appellant's property to Chagrin River. In 1979 plaintiff instituted a suit against Cuyahoga Count for the purpose of enjoining activities which were allegedly the cause of the flooding on her property. The parties signed an agreement which was approved by the court./1\ The present action /1\ The 1979 agreement stated: IT IS ORDERED, ADJUDGED AND DECREED that the defendants, - 2 - stems from a complaint plaintiff filed in November, 1987 against the Commissioners of Cuyahoga County and the County Engineer for injunctive relief and damages allegedly sustained by plaintiff as a result of defendants violation of the 1979 agreement. In May, 1988, plaintiff developed an informal plan to construct a culvert underneath Chagrin River Road at the bottom of the ravine to the south of plaintiff's property. The plan called for some or all of the surface run - off to be diverted at the bottom of the ravine into the newly constructed culvert, thereby diminishing the amount of surface water which would pass through plaintiff's property. The diverted water would then be County Engineer of Cuyahoga County and Commissioners of Cuyahoga County, and their agents, servants, employees and all persons acting in concert and participating with them, be and are hereby ordered to refrain from further excavating in the drainage ditch located on the westerly side of the center line of Chagrin River Road in the Village of Moreland Hills, Cuyahoga County, Ohio, as hereinbefore more particularly described, and from removing the grass or ground cover therein and from otherwise altering the depth, width or contour of the drainage ditch, except that this Order shall not be construed to prevent or prohibit the said defendants from normal mowing of the ground cover or from removal of any blockage within the drainage ditch. IT IS FURTHER ORDERED, ADJUDGED AND DECREED that the defendants, County Engineer of Cuyahoga and the Commissioners of Cuyahoga County, and their agents, servants, employees and all persons acting in concert and participating with them be and are hereby ordered to clean and remove the silt and other debris from the box culvert and storm drain and access to the river on at least an annual basis and more frequently as needed or as circumstances may dictate in accordance with sound engineering principles upon reasonable notice of any blocked condition and to use their best efforts to prevent flooding upon the private property belonging to plaintiff, all at defendant's costs. - 3 - permitted to run off onto the Metroparks property across the street. In June, 1989 plaintiff filed an amended complaint adding Metroparks as a defendant and alleging that defendant Metroparks is the lower servient estate between plaintiff's residence and the drainage estate and that Metroparks knowingly and willfully refused to agree to accept the surface run-off from plaintiff's dominant estate. Plaintiff testified that the basis of the complaint against Metroparks was Metroparks verbal refusal to agree to plaintiff's May, 1988 informal plan. Plaintiff conceded, at deposition, that her plan would not have been carried out in any event due to a lack of cooperation and financial support from other critical parties, the County and Village of Moreland Hills. All defendants, except Metroparks, were dismissed by plaintiff. The trial court granted summary judgment on plaintiff's amended complaint in favor of Metroparks. The trial court held that plaintiff's claim was not actionable because Metroparks had no duty as a matter of law to agree to accept plaintiff's 1988 plan. Plaintiff has appealed from the trial court's ruling granting Metroparks summary judgment. - 4 - I We will jointly deal with appellant's second, third and fourth assignments of error as they all address the propriety of the court's grant of summary judgment. Plaintiff argues the court erred in granting summary judgment because defendant Metroparks had a duty, as the lower subservient landowner between plaintiff's land and the Chagrin River, to accept the water which flows from the upper estate. Metroparks refusal, therefore, to agree to plaintiff's 1988 plan, plaintiff concludes, was a violation of its duty to accept the run-off. We agree with the trial court's conclusion that defendant Metroparks did not have any duty as a matter of law to agree to accept plaintiff's May, 1988 plan. The issue in this case is not whether or not an upper landowner may divert or increase the flow of surface water onto a lower landowner's property. Instead, the issue under the present facts is whether a lower landowner can be held liable for refusing to consent in advance to such an increased flow. The Supreme Court in McGlashan v. Spade Rockledge Terrace Condo. Development Corp. (1980), 62 Ohio St. 2d 55 adopted a test to be used in resolving surface water disputes and held: In resolving surface water disputes, courts of this state will apply a reasonable-use rule under which a possessor of land is not unqualifiedly privileged to deal with surface water as he pleases, nor absolutely prohibited from interfering with the natural flow of surface waters to the detriment of others. Each - 5 - possessor is legally privileged to make a reasonable use of his land, even though the flow of surface water is altered thereby and causes some harm to others, and the possessor incurs liability only when his harmful interference with the flow of surface water is unreasonable. (Butler v. Peck, 16 Ohio St. 334, and its progeny, overruled to extent inconsistent herein.) (Emphasis added.) Id. at syllabus. Under McGalshan a possessor of land is entitled to interfere with the natural flow of surface waters to the detriment of another landowner so long as the interference is reasonable. The issue is who shall be responsible for damage which occurs from an interference with surface water flow. Defendant in this case has never interfered with or impeded the flow of surface waters which have flowed from the upper landowner's property. The record also shows that plaintiff has never been damaged by anything the Metroparks did or did not do. Plaintiff appears to seek an order compelling Metroparks to agree to participate in plaintiff's resolution of plaintiff's water problem. We agree with the trial court's ruling that the courts cannot force Metroparks to agree. The courts cannot force someone to agree to abide by his or her legal obligations. Until Metroparks has done something to breach a duty to accept run off water, it hasn't caused plaintiff any damage and plaintiff doesn't have a case or controversy to pursue at this time. We also note that plaintiff's argument would be tantamount to requiring the lower landowner to waive any claim that might - 6 - arise as a result of the upper landowners unreasonable diversion of surface water onto its property. The assignments of error are overruled. II In her first assignment of error plaintiff complains that summary judgment was improper because the court relied upon her first deposition which she claims was not timely filed with the trial court. Plaintiff has failed to demonstrate any prejudice resulting from the purported untimely filing of her first deposition. The record reflects that the basis for the trial court's ruling was plaintiff's second deposition which was timely filed under plaintiff's interpretation of the civil rules' requirements. The assignment of error is without merit. Judgment affirmed. - 7 - It is ordered that appellees recover of appellant their costs herein taxed. The Court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this Court directing the Common Pleas Court to carry this judgment into execution. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. SPELLACY, J., AND HARPER, J., CONCUR PRESIDING JUDGE ANN DYKE N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announce- ment of decision (see Rule 26). Ten (10) days from the date hereof, this document will be stamped to indicate journaliza- tion, at which time it will become the judgment and order of the court and time period for review will begin to run. .