MD MALL ASSOCIATES, LLC v. CSX CORPORATION

Filing 175

ORDER SIGNED BY HONORABLE JUAN R. SANCHEZ ON 12/22/17. 12/22/17 ENTERED AND COPIES E-MAILED.(ti, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
MD MALL ASSOCIATES, LLC
v.
CSX TRANSPORTATION, INC.

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CIVIL ACTION
No. 11-4068

MEMORANDUM
Juan R. Sánchez, J.

December 22, 2017

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 FACT1
A.

The Existing Topography of the Area in Question

Plaintiff owns the MacDade Mall, a shopping center located in Delaware County,
Pennsylvania. The Mall property is bounded by streets on three sides: MacDade Boulevard to
the north, Glenside Avenue to the west, and South Avenue to the east. See Ex. 52. A railroad
right-of-way and track owned by CSX run along the entire southern border of the Mall property.2
The railroad track crosses South Avenue at a railroad crossing located just beyond the southeast
corner of the Mall property.

1

These findings of fact are based on the evidence presented during the trial of this case, held on
December 14-17, 2015, and on the Court’s observations of the area in question during a
December 16, 2015, site visit. At trial, the Court heard testimony from three experts: James P.
Kelly, P.E., and Frank X. Browne, Ph.D., P.E., engineering and storm water management experts
for the Mall, and Jeffrey M. Bross, P.E., a storm water management expert for CSX. The Court
accepts all three witnesses as experts in their fields and credits their opinions to the extent set
forth below. The Mall also presented two lay witnesses: John Fiore, the Mall’s property
manager since October 2006, and Steven Wolfson, a principal in the partnership that owns the
Mall. Both parties introduced deposition testimony from Jeremy Helene, a CSX staff engineer,
William Parry, a manager of environmental remediation for CSX, and David Lackford, CSX’s
roadmaster for the 100 miles of “mainline” from Center City Philadelphia to Center City
Baltimore. All findings are made by a preponderance of the evidence.
2

CSX acquired the track in 1989 when it merged with the Baltimore and Philadelphia Railroad
Company, a company operated by the Baltimore and Ohio Railroad Company, which built the
track in the late 1800s. See Ex. 17; Ex. 20.
2

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-ofway. See Ex. 37 at 68-70; Ex. 42 at 65.
The ballast serves both structural and drainage functions. Structurally, the ballast keeps
the track level and elevated, see Ex. 42 at 56, and the sloping of the ballast on either side of the
track serves to prevent the track from moving, see Ex. 37 at 83. Because the ballast is porous by
design, storm water can flow through it. Trial Tr. 74, Dec. 14, 2015; Trial Tr. 179, Dec. 15,
2015; see also Trial Tr. 120, Dec. 15, 2015. The ballast thus ensures that water drains away
from the track and onto the surface of the right-of-way where it flows to the nearest low point.
See Ex. 42 at 26-27, 56; Ex. 37 at 82, 128-29.
Alongside the sloped ballast, the surface of the right-of-way is generally flat in
appearance, see, e.g., Trial Tr. 105, Dec. 15, 2016 (Browne) (characterizing the land alongside
the elevated ballast as “flat property”); id. at 125 (agreeing the area around the track is “really
flat”), though recent topographic maps of an approximately 120-foot stretch of the right-of-way
and adjacent Mall property west of South Avenue reveal slight undulations.3

3

The recent topographic maps were prepared by Kelly & Close Engineers, an engineering firm
retained by the Mall in which Mr. Kelly, one of the Mall’s engineering experts, is a principal.
The firm surveyed the southeastern area of the Mall property and the adjacent portion of the
right-of-way for a distance of approximately 120 feet from the railroad crossing at South
Avenue. See Ex. 8, sheets 1 & 2.
3

On either side of the track, the surface of the right-of-way slopes slightly downward to a
low point running generally parallel to the track close to the property line,4 then slopes upward
onto the adjacent property. See Ex. 8, sheets 1-3. The ground on the south side of the track is
generally flatter and higher than the ground on the north side of the track. See id.
On the north side of the track, the high point between the track and the Mall is almost
entirely on the Mall property, as is most of the upslope to that high point.5 From the high point
on the Mall property, the ground descends down a short hill to the Mall parking lot. The
mounded area at the top of the Mall hill—referred to throughout this litigation as a “berm”6—is
lined with trees and bushes.
On the south side of the track, the land slopes upward from the low point on the right-ofway toward the residential neighborhood further to the south.7

4

These low points, referred to on the Kelly & Close topographic maps as “swale centerlines,”
Ex. 8, sheet 2, appear to generally correspond to what the CSX witnesses referred to as “ditch
lines,” see Ex. 37 at 87-88, 126-27; Ex. 42 at 65-66.
5

The ground is almost entirely flat at the railroad crossing, which is slightly higher than the rest
of the right-of-way. See Ex. 8, sheets 2 & 3. At a distance of 20 feet west of the railroad
crossing, the surface of the right-of-way is still fairly flat, but the high point between the right-ofway and the Mall property is on the right-of-way, just south of the property line. See id., sheet 3.
At a distance of 40-120 feet west of the right-of-way, the high point is on the Mall property. See
id.
6

Despite the parties’ consistent use of the term “berm” to refer to the earthen mound between the
two properties, at trial, Dr. Browne, a former proponent of the theory that CSX’s predecessor
constructed a berm between the properties, disavowed his earlier opinion, stating he now
believes “[a] berm was not constructed as a berm.” Trial Tr. 143-46, Dec. 15, 2015.
7

On the Kelly & Close topographic maps introduced at trial, the low point on the south side of
the right-of-way appears to be located at the property line for much of the surveyed portion of
the right-of-way. See Ex. 8, sheet 2. During trial, however, the Mall produced a revised version
of one of the Kelly & Close maps, on which Mr. Kelly had added certain measurements. See
Trial Tr. 97, Dec. 16, 2015 (describing the additional measurements). The revised map, which
was not admitted into evidence, depicts the property line on the south side of the right-of-way as
4

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 earlier8—the Mall has experienced flooding in the
southeast corner of the Mall property during heavier rains.

located further south than on the original map. It is thus not clear exactly how close the low
point on the south side of the track is to the southern property line of the right-of-way.
8

As discussed below, although the Mall’s witnesses testified they first became aware of the
flooding problem at the Mall in October 2010, see Trial Tr. 6, 55, Dec. 15, 2015, photographic
evidence suggests flooding may have occurred prior to 2010, see Ex. 58 (June 29, 2006,
photograph depicting standing water in the Mall parking lot and an eroded area in the hill leading
up to the right-of-way).
5

During significant rain events,9 storm water pools in the mild depressions at the outer
edges of the right-of-way on either side of the track.
Although the surface of the right-of-way is “fairly flat,” on the north side of the track, the
pooling water flows in an easterly direction toward the railroad crossing at South Avenue. See
Trial Tr. 33-34, 48-49, Dec. 14, 2015. The elevation at South Avenue is higher than on the rightof-way, and prevents the water from continuing eastward as it approaches the railroad crossing.
See id. at 49. Instead, before reaching the crossing, the water flows in a northerly direction onto
the lower-lying Mall property.10 See id. at 33-34, 48-49.
The water that pools on the south side of the track contributes to the flooding on the Mall
property in that, as the water accumulates on the south side, it flows through the ballast
supporting the track onto the north side of the right-of-way and, ultimately, onto the Mall
property.11 See Trial Tr. 73-74, Dec. 14, 2015; Trial Tr. 178, Dec. 16, 2015.
An open-ended drainage pipe extends onto the right-of-way from the back of a storm
water inlet that sits below grade in the west side of South Avenue, just south of the railroad

9

It is undisputed that the Mall generally experiences significant flooding from the right-of-way
in precipitation events of three or more inches, see Trial Tr. 20, Dec. 16, 2015, though lesser
rains can also cause flooding, depending on the intensity of the rain and other factors, see id. at
103-04 (Browne) (explaining that one or two inches of high intensity thunderstorm-type rain can
produce flooding); Trial Tr. 31-32, Dec. 16, 2015.
10

Because the flow of water along the track is not always apparent to the naked eye, Mr. Kelly
confirmed this flow pattern by performing a dye test. See Trial Tr. 65, Dec. 14, 2015. Mr. Kelly
performed the dye test from a point approximately 87 feet west of South Avenue, see Ex. 9 ¶ 7;
hence, it is not clear how far west the west-east flow pattern originates.
11

Although Mr. Fiore testified that he observed the pooling water flow from west to east toward
South Avenue along the eastern portion of the south side of the right-of-way, see Trial Tr. 13,
Dec. 15, 2015, these observations were not confirmed by a dye test, see Ex. 9 ¶ 6(a) (explaining
a dye test was not performed on the south side of the track because there was insufficient water
buildup on that side on the day the dye testing was performed).
6

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 rightof-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-

7

way at the base of Garfield Avenue, a street that runs perpendicular to the right-of-way toward
the western end of the Mall. Ex. 2, figure 8; Trial Tr. 109, Dec. 15, 2015 (“So we feel that C is
being infiltrated. It is not going down onto the railroad.”). Dr. Browne conceded, however, that
he had never actually observed the infiltration device when it was raining, and when presented
with a photograph depicting the device completely inundated with water during a rainstorm, he
acknowledged that, at least during a heavy rain, the device would not collect all of the water that
flows toward it. Trial Tr. 131-32, Dec. 15, 2015; Ex. 79. Although the photograph of the
submerged Garfield Avenue infiltration device was taken after a more than four-inch rain, Mr.
Bross, who has observed the Garfield Avenue infiltration device on multiple occasions,
confirmed that water from the residential neighborhood bypasses the device and flows onto the
right-of-way, even in minor rainfalls.12 See Trial Tr. 13-14, 28, Dec. 16, 2015. The Court
therefore finds that, contrary to Dr. Browne’s testimony, storm water from area “C” also flows
onto the right-of-way, increasing the proportion of storm water on the right-of-way that
originates in the residential neighborhood.
Mr. Bross’s estimate, in contrast, overstates the amount of storm water on the right-ofway 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

12

Indeed, Mr. Bross stated he had never seen the Garfield Avenue infiltration device without
water in it, even after a ten-day period with no rain. See Trial Tr. 13, Dec. 16, 2015. According
to Mr. Bross, a functioning infiltration device should completely infiltrate precipitation within 48
to 96 hours. See id.
8

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

9

onto the lower, north side of the right-of-way. On the north side of the right-of-way, water flows
from west to east, following the slight downward grade along a portion of the right-of-way, and
then, when the ground begins to slope upward toward the railroad crossing, flows north, down
the hill to the lower-lying Mall parking lot.
C.

Development of the Area in Question
1.

Construction of the Railroad

As discussed in greater detail below, the Mall argues CSX is liable for the flooding on its
property because construction of the railroad more than a century ago changed the flow of
surface water on the right-of-way, channeling the water into swales from which it discharges in
concentrated form onto the Mall property.
Although the Mall has developed detailed information regarding the current topography
and flow of water in the area in question, the record contains scant evidence regarding the
topography and flow in this area at any time before the Mall became aware of the flooding
problem in 2010.
The railroad track now owned by CSX was constructed by the Baltimore and Ohio
Railroad Company (B&O) in the late 1800s.13 See Ex. 17.
The parties agree that before the track was constructed, the land where the right-of-way,
the Mall, and the upgradient residential neighborhood to the south now sit consisted of
undeveloped forest land. See Trial Tr. 65-67, Dec. 15, 2015; Def.’s Proposed Findings of Fact

13

Although the record does not reflect when, exactly, the track was constructed, B&O acquired
the portion of right-of-way adjacent to what is now the Mall property by deed in 1886, see Ex.
17, and the track appears on a topographic map of the area from 1898, see Ex. 2, figure 1; Trial
Tr. 68, Dec. 15, 2015. The deed by which B&O acquired the portion of the right-of-way in
question is not in the record.
10

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,”

11

noting “[e]very construction project in America going back to the 1800s, 1700s used cut and
fill.” Id. at 71-73, 80, 130.14 Dr. Browne also opined that, as part of the cut and fill, B&O would
have created depressed swales on either side of the track and a raised berm along the northern
edge of the right-of-way. See Trial Tr. 72, Dec. 15, 2015; Ex. 2, figure 3 (conceptual view
depicting the construction of the railroad as creating defined swales on either side of the track
and a high point at the northern edge of the right-of-way).
Based on the foregoing assumptions about how the track was constructed, Dr. Browne
further opined that the construction of the track would have changed the flow of storm water in
the area in question. See id. at 72-73. In Dr. Browne’s conceptual view, water on the south side
of the right-of-way would have continued to flow from south to north along the natural slope of
the land. See id.; Ex. 2, figure 3. Upon reaching the right-of-way, however, the water would
have flowed in the swales along the track from west to east. See Trial Tr. 72-73, Dec. 15, 2015;
Ex. 2, figure 3.
While aspects of Dr. Browne’s testimony are plausible, his theory as to how construction
of the railroad track changed the flow of storm water rests on numerous assumptions that lack
evidentiary support in the record and are beyond the scope of his expertise. Given this lack of
evidentiary support, the Court finds Dr. Browne’s theory as a whole to be speculative and
therefore declines to credit it.
Dr. Browne’s opinion regarding the slope and flow of water in the area in question before
the track was built is based entirely on the 1898 USGS map. While the map enabled Dr. Browne
to determine an approximate historic grade of the general area depicted, Dr. Browne himself
14

Mr. Kelly also testified that B&O would have to have used a cut and fill technique to install
the track, but the Court struck his testimony on the subject as outside the scope of his expertise.
See Trial Tr. 45-48, Dec. 14, 2015.
12

acknowledged the limitations of the USGS data, conceding he could not say, based on those data,
whether the slope “at the actual point where the tracks [we]re done” was constant, and that the
stretch of land where the railroad was constructed “could’ve been flat” or “could’ve been more
hilly” than depicted in his pre-track conceptual view. Trial Tr. 125, Dec. 15, 2015. Thus,
although the Court accepts as credible Dr. Browne’s opinion that, overall, the land in the area in
question likely had a mild downward slope from south to north, because, by Dr. Browne’s own
admission, the slope on what became the right-of-way could have been different from his
approximate historic grade, his testimony falls short of establishing the actual historic flow of
water along the land now occupied by the right-of-way.
Dr. Browne’s opinion that construction of the railroad changed the flow of water rests on
assumptions about how the track was constructed in the late 1800s, an area in which he
admittedly has no expertise. See Trial Tr. 80, 130, Dec. 15, 2015. Dr. Browne’s post-track
conceptual view assumes, for example, that the railroad changed the grade along the width of the
right-of-way using a cut and fill technique. If, in fact, the land sloped downward, it makes sense
the railroad may have had to alter the slope to some degree to create a level surface for the track.
Because there is no evidence regarding the actual slope along the right-of-way, however, it is
impossible to say whether or to what extent such alteration would have been required. Even
under Dr. Browne’s own conceptual view, it seems unlikely significant excavation would have
been required, given the extremely mild grade in the area—which Dr. Browne agreed would
have been the equivalent of a vertical drop of only “a few inches” across the 30 to 40 foot width
of the right-of-way.15 See Trial Tr. 124, Dec. 15, 2015. Notably, even today, the surface of the

15

At trial, Dr. Browne agreed with defense counsel that his approximate historic grade—a
vertical drop of three to four feet across 200 horizontal feet—would translate to a drop of only “a
few inches” across the 30- to 40-foot width of the right-of-way. Trial Tr. 124, Dec. 15, 2015.
13

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

According to a 1963 plan submitted by the Pennsylvania Department of Highways to the
Pennsylvania Public Utility Commission in connection with an application to widen and improve
a portion of South Avenue encompassing the railroad crossing, however, the actual width of the
right-of-way appears to be 68 feet. See Ex. 18A; Ex. 18B; Ex. 53; see also Trial Tr. 87, Dec. 16,
2015. By this Court’s calculation, the vertical drop would be about 12 to 16 inches across the
actual 68-foot width of the right-of-way.
The Mall asserts that when Dr. Browne characterized the south-north slope along the
right-of-way as “very flat,” he was describing the right-of-way after the track had been
constructed. See Pl.’s Reply Br. ¶ 7. In fact, Dr. Brown agreed the right-of-way was “very flat”
both before and after construction of the track. See Trial Tr. 124-25, Dec. 15, 2015 (stating the
right-of-way was “very flat” in the late 1800s, “before the track was built,” and is “very flat”
today).
14

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-ofway, 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 rightof-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

15

Mall intended to maintain the existing elevations, not to increase them.16 See Trial Tr. 94-95,
102-05, Dec. 14, 2015. The drainage plan, however, is a design drawing; it does not show the
actual elevations once the Mall was built, and it is therefore possible that the Mall created the
high point. Moreover, even if a high point existed along the property line in 1969, more than 70
years after the railroad was constructed and after some development had occurred on the land,
see Ex. 3, fifth photo (June 14, 1958, photograph of the area in question, showing clearing and
development on what is now the Mall property), there is no evidence that the railroad created the
high point when the track was constructed in the late 1800s.

Cf. Ex. 37 at 88 (Helene)

(explaining that the ditch line along the track is “often times a naturally occurring thing”).
For these reasons, the Court does not find Dr. Browne’s opinion that the construction of
the railroad track in the late 1800s changed the flow of water along the right-of-way to be
credible.
2.

Construction of the Residential Neighborhood

At some point after the railroad was built, the residential neighborhood was constructed
on the upgradient land to the south of the right-of-way. See Trial Tr. 120, Dec. 15, 2015. The
construction of houses, roofs, sidewalks, streets, and driveways in the residential neighborhood
created new impervious surfaces in what had formerly been raw land, thereby increasing the
amount of storm water flowing onto the right-of-way. See id. at 120-21.

16

The elevations on the site drainage plan are higher than the current elevations along the
property line. Compare Ex. 19 (showing elevations ranging from 97.9 feet to 101.5 feet), with,
Ex. 3, sheet 3 (showing elevations ranging from 96 to 98 feet). It is not clear what accounts for
this discrepancy.
16

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-ofway 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.

17

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,17 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, 2015.18
Although the construction drawings contemplated the installation of 60 linear feet of 18inch 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
17

At the time the road-widening project was completed, the alterations to the railroad crossing
had to be approved by the PUC. See Ex. 53; Trial Tr. 79, Dec. 14, 2015.
18

There is no evidence as to why the drainage system at the railroad crossing would have
included these pipes, though it is reasonable to assume that the pipes were intended to pick up
drainage. See Trial Tr. 92, Dec. 16, 2015 (Bross) (opining that “you don’t run a pipe to nowhere
with the expectation that you’re not going to take some water”).
18

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

19

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

20

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

21

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. 9596, 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,

22

or compacting, the ballast to create a smooth, level, raised surface for the track. See id. at 52-56;
Ex. 37 at 63-65.19
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, 9091, 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 rightof-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-of19

The tie replacement work was performed on March 29, 2009, and involved some 46 people
and 30 pieces of equipment. See Ex. 42 at 47-48. Surfacing work was also performed on March
29, 2009, involving 20 people. See id. at 50. Additional surfacing work was performed on April
27 and 28, 2009, by two or three people. See id. at 51-52. The surfacing work involves two
pieces of equipment: a tamper and a regulator. See id. at 53.
23

way and increased the velocity of water flowing from west to east on the north side of the rightof-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 55.20
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-ofway may have caused flooding on the Mall property in earlier years. See Trial Tr. 140-41, Dec.
20

Mr. Wolfson explained that as part of his due diligence before acquiring an interest in the Mall
in 2004, he walked the Mall property and spoke with the owners of the property about overall
maintenance, but neither saw nor heard of any issues regarding storm water at the property. Trial
Tr. 53-54, Dec. 15, 2015. He also stated he did not see any channels eroded from the right-ofway to the Mall property at that time. Id. at 54.
24

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.

25

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 17-18.21
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
21

Although the Mall has since taken additional steps on its property to address the flooding, it
has been unable to stop the flooding. For example, the Mall attempted to address the flooding by
pulling the riprap in the upper portion of the eroded channel down to the lower portion of the
hill; installing field fabric and new soil, topped with straw and ryegrass seed, in the area above
the riprap; and installing a silt fence, which blocks water, at the very top of the hill. Trial Tr. 2526, 47, Dec. 15, 2016. After the Mall took these steps, however, storm water began flowing
from the right-of-way onto the Mall property at a point 10 to 30 feet west of the original eroded
channel. Id. at 27; see also Ex. 14. Water has also flowed onto the Mall property from a third
spot along the border further west. See Trial Tr. 30, Dec. 15, 2015.
26

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. ¶ 6.22
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

22

Mr. Kleczkowski also suggested another potential solution would be to direct the water to the
catch basin on the Mall property. See Ex. 41 at 59-61.
27

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 100year 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

28

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, 858 A.2d 589, 605 (Pa. 2004) (quoting Lucas v.
Ford, 69 A.2d 114, 115 (Pa. 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, 96 A.2d 140, 142
(Pa. 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, 30 A. 844, 845 (Pa. 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., 103 A.2d 422, 423 (Pa. 1954).

29

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., 499
A.2d 1373, 1378, 1383 (Pa. Super. Ct. 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 (Pa. 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

30

loss occurs to his neighbor, it is damnum absque injuria [i.e., loss without injury].” Id. (quoting
Pa. Coal Co. v. Sanderson, 6 A. 453, 457 (Pa. 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); 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, 63 A. 1073, 1073 (Pa. 1906)); White, 46 Pa. Super. at 378.
At least where the railroad company acquires its right of way from the owner of the adjacent

31

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.”23 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,

23

Where a landowner agrees to sell a right-of-way across his premises to a railroad company, or
where the railroad company acquires a right-of-way across a landowner’s premises by
condemnation, “[a]ny burden cast upon the land by the construction of the railroad, which
detracts from its value,” is presumed to be encompassed by the purchase price. White, 46 Pa.
Super. at 374 (applying this principle in the context of a right of way acquired by condemnation);
see also Updegrove v. Pa. Schuylkill Valley R.R. Co., 19 A. 283 (Pa. 1890) (holding “injury or
damage resulting to the [grantor’s] property by reason of the construction of the road” is
“supposed to be in the contemplation of the parties when the company pays its money for the
right of way and obtains a release therefor”); N. & W. Branch R.R. Co. v. Swank, 105 Pa. 555,
561 (Pa. 1884) (“An agreement between a landowner and a railroad company to sell the latter a
right of way across the premises of the former, covers all damages of whatever sort suffered by
the landowner . . . .”). Although the record reflects that CSX’s predecessor obtained the portion
of the right of way adjacent to what is now the Mall property by deed in 1886, see Ex. 17, the
details of the transaction, including whether the grantor also owned the land where the Mall now
sits, are not clear from the record.
32

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).24
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, 131 A.3d 1 (Pa. 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

24

Although the decisions in Flaherty and White refer to a railroad company’s “right to interfere
with the natural flow” of surface water on its right of way, Flaherty, 63 Pa. Super. at 623; White,
46 Pa. Super. at 375, it is not clear that these decisions create a different standard of liability for
railroads. Rather, these cases can instead be understood to reflect application of the rule in
Pfeiffer that an upper landowner is not liable for unavoidable loss to his neighbor resulting from
the upper owner’s “natural and proper” use of his land without negligence. As the natural and
proper use of a railroad right-of-way is for operation of a railroad, so long as the railroad is
constructed and maintained without negligence, the railroad is not liable for loss caused by the
railroad’s interference with the flow of surface water as the “necessary consequence of the
construction and maintenance of the road.”
33

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

34

“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 water on its property by creating swales or ditches alongside the track in which
water collects and moves from west to east along a portion of the right-of-way before
discharging onto the eastern corner Mall property in concentrated form.
To establish trespass liability based on a landowner’s “collection, concentration, and
diversion of surface water . . . via an artificial channel,” a plaintiff must “demonstrate the natural
flow of water before and after installation of the [artificial channel].” Florimonte, 2013 WL
3973727, at *9; see also, e.g., Rau, 103 A.2d at 424 (upholding liability for diversion of surface
water through an artificial channel where there was “adequate testimony” to support the trial
court’s findings regarding surface water drainage before and after defendant made improvements
to its property); Bretz, 86 A.3d at 310-11 (describing evidence regarding flow of surface water
before and after defendant’s improvements). The plaintiff must also show water was collected
and turned in a body upon his lands “through an artificial channel made by the defendant.”
Miller v. Laubach, 47 Pa. 154, 155 (Pa. 1864) (second emphasis added). The Mall has not made
the required showing here.
Although the record in this case contains ample evidence regarding the current flow of
surface water on the right-of-way and from the right-of-way onto the Mall property, the only
evidence regarding the flow of water in this area before and after the track was constructed more

35

than a century ago is Dr. Browne’s testimony based on his conceptual views. For the reasons
explained above, however, the Court finds Dr. Browne’s opinions regarding the pre- and posttrack flow to be speculative. In particular, as noted, the only actual topographic evidence
anywhere close in time to when the track was constructed is the 1898 USGS “Chester
Quadrangle” map, which Dr. Browne admitted does not depict the area in question in sufficient
detail to permit him to determine the actual slope along the right-of-way either before or after the
railroad was built. Absent credible evidence of the flow of water along CSX’s property before
and after the track was constructed, the Mall cannot show that CSX’s predecessor changed the
flow.
Moreover, apart from Dr. Browne’s testimony, which this Court does not credit for the
reasons set forth above, there is also no evidence that the depressions along the right-of-way are
artificial channels or that CSX or its predecessor created them. As Mr. Helene explained,
although CSX seeks to maintain the “ditch line” or low point along the right-of-way so as to
keep it free of blockages, the ditch line “is often times a naturally occurring thing.” Ex. 37, at
87-88. There is no evidence as to whether the high point on the north side of the right-of-way,
which blocks water from the right-of-way from flowing down the Mall hill, existed when the
track was constructed in the late-1800s, or that CSX created the high point. Nor is there any
evidence that CSX or its predecessor did anything to change the natural grade of the land along
the length of the right-of-way. The Mall therefore has not shown that CSX or its predecessor did
anything to artificially channel water from the right of way onto the Mall property.
Even if the Court were to credit Dr. Browne’s testimony that CSX’s predecessor changed
the flow of water on the right-of-way when constructing the track, the Mall still could not prevail
on its continuing trespass claim because it has not proved that the railroad acted with the intent

36

required for a claim of trespass. Where, as here, a trespass consists of intentionally causing a
thing to enter the land of another, the intent requirement is satisfied if the act that causes the
entry “is done with knowledge that it will to a substantial certainty result in the entry of the
foreign matter.” Gilbert, 90 A.3d at 52 (quoting Restatement (Second) of Torts § 158 cmt. i);
see also Liberty Place Retail Assocs., L.P. v. Israelite Sch. of Universal Practical Knowledge,
102 A.3d 501, 506-07 (Pa. Super. Ct. 2014) (noting the term “intent” is used in the Restatement
“to denote that the actor desires to cause consequences of his act, or that he believes that the
consequences are substantially certain to result from it” (quoting Restatement (Second) of Torts
§ 8A)). In this case, the Mall alleges CSX caused water to go onto the Mall property by creating
swales in which storm water is artificially channeled when constructing the railroad. Given that
the railroad was constructed in the late 1800s—before the upgradient residential development
was developed, substantially increasing the amount of water flowing onto the right-of-way—and
the flooding problem did not arise until more than a century later, there is no basis on which to
conclude that construction of the railroad was done with knowledge that it would “to a
substantial certainty” result in the diversion of water onto the lower-lying property.25

25

Given the long lapse of time between the construction of the railroad and the advent of the
flooding problem, and the substantial development of the surrounding area in the intervening
years, it is also not clear that CSX’s predecessor’s alleged creation of artificial channels on the
right-of-way is what caused water to flow from the right-of-way onto the Mall property in any
event. Insofar as the Mall’s trespass theory is premised on CSX’s failure to maintain the rightof-way, see Trial Tr. 66, Dec. 14, 2015 (Kelly) (opining that the cause of the storm water
discharging onto the Mall property is the “[l]ack of maintenance of the swale and earth[en] berm
that separates the two properties”), it is not clear such failure to act can support trespass liability,
see, e.g., Kruchten v. United States, 914 F.2d 1106, 1109 (8th Cir. 1990) (holding “a cause of
action for trespass does not arise from mere omission to perform a duty; there must be some
affirmative act by violence or force, direct or imputed, and the injury must be immediate and not
consequential” (quoting 87 C.J.S., Trespass § 4, at 958 (1954))); cf. Kuczineski, 99 Pa. Super. at
25 (holding a railroad was not liable in trespass for the washing of fill material from its
embankment onto a lower-lying property where there was no proof “that any affirmative act
upon the part of the defendant company since the construction of its railroad, more than forty37

Citing Kopka v. Bell Telephone Company of Pennsylvania, 91 A.2d 232 (Pa. 1952), the
Mall argues a trespasser’s conduct need not be “intentionally wrongful or recklessly or
negligently disregardful of the interest of the possessor” to support liability. Pl.’s Proposed
Findings ¶ 113. Kopka, however, is inapposite, as the language cited by the Mall concerns the
intent required to hold a trespasser liable for bodily harm caused to the possessor of the land as a
result of the trespass, not the intent required to establish the trespass in the first instance. Kopka,
91 A.2d at 451-52. Moreover, unlike this case, the trespass in Kopka did not consist of causing
entry of a thing onto the land of another.

four years ago, caused any diversion of the surface water and consequent damage to the
plaintiff’s property”). Notably, in each of the trespass cases cited by the Mall, the defendant was
held liable for taking affirmative acts that channeled water directly onto the plaintiff’s property.
See St. Andrew’s Evangelical Lutheran Church of Audubon v. Twp. of Lower Providence, 198
A.2d 860, 861 (Pa. 1964) (township installed a drainage pipe under a road, causing surface
waters to flow onto plaintiffs’ property in concentrated form and increased quantities); Rau, 103
A.2d at 424 (in constructing a residential development on its property, the upper landowner
excavated the low point at the mouth of a natural swale located partly on the higher and lower
land, narrowed the mouth of the swale, and cut a channel in an earthen bank it had previously
erected across the mouth of the swale, “thereby funneling the water into a body and discharging
it with greater force and in increased quantities at a particular point on plaintiff’s land”); Lehigh
& Wilkes-Barre Coal Mining Co. v. Pittston Coal Mining Co., 137 A. 672, 672-73 (Pa. 1927)
(upper landowner constructed a ditch on a descending grade toward an adjacent lower-lying
property so as to “rid itself of surplus water at plaintiff’s expense”); Pfeiffer, 30 A. at 845 (upper
landowner “by drilling a well and pumping, increased the aggregate quantity of water
discharged, concentrated it at an artificial point of flow, and changed its character from fresh to
salt”); Miller, 47 Pa. at 155 (defendant constructed a drain though marshy ground on his own
property and thereby discharged water that previously remained on defendant’s own land without
generating runoff onto plaintiff’s land); Moeller v. Metzger, 491 A.2d 1356, 1357 (Pa. Super. Ct.
1985) (reversing grant of a nonsuit in action to enjoin flooding where there was evidence
showing “that the flow of water had been concentrated artificially in pipes and in a ditch and
then allowed to flow onto plaintiff’s land”); Marlowe v. Lehigh Twp., 441 A.2d 497, 499 (Pa.
Commw. Ct. 1982) (township concentrated and redirected water onto plaintiffs’ property via a
newly constructed storm drainage system); Trimmer v. Berkheimer, 61 Pa. Super. 269, 276 (Pa.
Super. Ct. 1915) (recognizing a property owner “has no right to accumulate and carry . . . water
from the roofs of his house onto the lot of an adjoining owner”).
38

Insofar as the Mall argues CSX’s intent can be established based on its failure to remedy
the storm water problem once it arose in 2010, see Pl.’s Proposed Findings ¶ 113, this argument
is similarly unavailing, as it is the act which causes entry of a thing onto the land of another that
must be intentional to support trespass liability, even in the case of a continuing trespass. See
Restatement (Second) of Torts § 161 (defining continuing trespass as the continued presence on
the land of a thing which the actor or his predecessor in legal interest “has tortiously placed
there” (emphasis added)); see also Marlowe v. Lehigh Twp., 441 A.2d 497, 500 n.3 (Pa.
Commw. Ct. 1982) (finding the intent requirement satisfied where the activities which caused
the flow of water on the plaintiffs’ land—constructing a storm drainage system to direct water
over plaintiffs’ property—were intentional).
The Court therefore concludes the Mall has not proved by a preponderance of the
evidence that CSX is liable for continuing trespass.
B.

Negligence

The Mall also seeks to hold CSX liable for negligently failing to maintain its property by
failing to maintain its ditch lines, failing to improve its drainage swales when performing track
maintenance work in 2009 to conform to the company’s own internal specifications, failing to
plant vegetation to control the erosion caused by its channeling of storm water, and failing to
maintain the clogged pipe that extends onto the south side of the right-of-way.
To establish liability for negligence, a plaintiff must prove four elements: “(1) a duty
recognized by law, requiring the actor to conform to a certain standard of conduct; (2) a failure
of the actor to conform to that standard; (3) a causal connection between the conduct and the
resulting injury; and (4) actual loss or damages to the interests of another.” Fazio, 714 A.2d at
512; accord Florimonte, 2013 WL 3973727, at *7.

39

Under Pennsylvania law, a landowner has a duty to control surface water on his property
only where the landowner has 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, 499 A.2d at 1378. “[W]here the factors of
artificial diversion or unreasonable or unnecessary increase are not present,” however, “a
landowner is under no duty to tame the surface waters flowing over his land.” Id. at 1383; see
also Shamnoski, 858 A.2d at 679-80 (recognizing an upper landowner owes a duty to a lower
landowner with respect to water run-off “only where the water is diverted from its natural
channel or where it is unreasonably or unnecessarily changed in quantity or quality” (quoting
Lucas, 69 A.2d at 116)); Fazio, 714 A.2d at 513-14 (holding a mini-mart owner could not be
liable for negligently causing or allowing water runoff from its property to accumulate in an
adjacent alleyway, creating a dangerous icy condition for the walking public, where there was no
evidence the defendant “had either diverted the water from its natural channel or increased the
quantity of water discharged into the alleyway”).
Although the Mall contends CSX has a duty to control the surface water on its right-ofway because, in constructing the track, its predecessor changed the flow of the water, channeling
it into swales alongside the track, as explained above, the Mall has not proved its theory. Hence,
the Mall has not established that CSX has a duty to prevent the surface water on its right-of-way
from flowing downhill.
Moreover, the Mall has not shown that CSX was negligent in any event.
The Mall faults CSX for failing to maintain the ditch lines on the right-of-way, citing Mr.
Lackford’s 2011 testimony that the last time he sent someone to “ditch” along the track was in
2005 or 2006. As Mr. Lackford explained, the purpose of ditching work is to remove items

40

discarded along the ditch line that might block the flow of water, such as “[r]efrigerators,
couches, mattresses, large branches, trees, [and] trash.” Ex. 42 at 27-29, 33. While CSX
apparently has not performed ditching work in the area adjacent to the Mall property in some
years, there is no evidence of any blockages along the ditch lines in this area that are contributing
to the flooding on the Mall property.
With respect to CSX’s failure to create defined drainage swales, the Mall faults CSX for
not creating swales that comply with the company’s 2007 “Standard Specifications for the
Design and Construction of Private Sidetracks” in connection with the tie replacement and
surfacing work performed in 2009. As Dr. Browne acknowledged, however, the Specifications
are a set of guidelines for the “design and construction of private sidetracks on properties
operated by CSX Transportation.” Ex. 6, at 2; see Trial Tr. 129, Dec. 15, 2015. While the
Specifications require drainage ditches ten feet wide and two feet deep for new construction of
private sidetracks, see id. at 6, 19, the track at issue in this case is a main rail, not a sidetrack, and
the 2009 tie replacement and surfacing project was track maintenance work, not new
construction. See Trial Tr. 129-30, Dec. 15, 2015. There is thus no basis on which to conclude
that CSX had any duty to comply with the Specifications, which were issued in 2007, more than
a century after the track at issue was constructed, as part of the track maintenance work
performed in 2009.
The Mall’s remaining negligence allegations are similarly unavailing. While the Mall
argues that the 2009 track maintenance work was negligently performed in that CSX spread old
ballast to the sides of the track instead of removing it from the site, the Mall’s theory as to how
the spreading of the ballast is contributing to the flooding problem is speculative, and the Court
does not credit it for the reasons explained above. The Mall also faults CSX for failing “to plant

41

vegetation to control the erosion caused by CSX’s channeling of storm water.” Pl.’s Proposed
Findings ¶ 114. At trial, Dr. Browne asserted the lack of vegetation violates one of CSX’s
specifications, see Trial Tr. 87-88, Dec. 15, 2015, yet the Mall has not directed the Court to any
such specification in the record. Finally, because the Mall has not proved that CSX installed the
pipe that extends onto the south side of the right-of-way, there is no evidence CSX has any duty
to maintain it.
The Court therefore concludes the Mall has not proved by a preponderance of the
evidence that CSX is liable for negligence.
C.

Preemption

In addition to arguing it is not liable for the flooding on the Mall’s property under
Pennsylvania law, CSX argues the Mall’s claims are preempted under the Federal Railroad
Safety Act (FRSA) and the Interstate Commerce Commission Termination Act (ICCTA).
1.

FRSA Implied Conflict Preemption

On appeal from an earlier summary judgment ruling in this case, the Third Circuit Court
of Appeals held the Mall’s claims are not preempted under FRSA’s express preemption
provision, which provides that “[a] State may adopt or continue in force a law, regulation, or
order related to railroad safety . . . until the Secretary of Transportation . . . prescribes a
regulation or issues an order covering the subject matter of the State requirement.” 49 U.S.C.
§ 20106(a)(2). At issue in that appeal was whether a drainage regulation prescribed by the
Secretary, codified at 49 C.F.R. § 213.33,26 “covered” the subject matter of the Mall’s claims.
The Court of Appeals held it did not, in part because the type of harm the drainage regulation
26

The drainage regulation requires that “[e]ach drainage or other water carrying facility under or
immediately adjacent to the roadbed shall be maintained and kept free of obstruction, to
accommodate expected water flow for the area concerned.” 49 C.F.R. § 213.33.
42

seeks to avoid (pooling of water on or around railroad tracks) is different from the harm for
which the Mall seeks redress (storm water discharge onto an adjacent property). See MD Mall
Assocs. v. CSX Transp., Inc., 715 F.3d 479, 491-93 (3d Cir. 2013).
Having concluded FRSA did not expressly preempt the Mall’s claims, the Court of
Appeals next considered whether the claims were nevertheless preempted by implication, either
because compliance with both state and federal law would be impossible or because state law
would pose “an obstacle to the accomplishment and execution of the full purposes and objectives
of Congress.” Id. at 495 (quoting Crosby v. Nat’l Foreign Trade Council, 530 U.S. 363, 373
(2000)). The Court “confidently conclude[d]” this case did not involve a situation in which
compliance with state and federal law was impossible, but left for resolution on remand the
factual question “whether and to what extent, if any, Pennsylvania law stands as an obstacle to
the accomplishment and execution of § 213.33’s railroad safety purpose.” Id. at 495-96.
As framed by the Third Circuit, the preemption question on remand is whether “in the
maintenance of the drainage facilities that are under and immediately adjacent to the portion of
the track in question, CSX is unable, through reasonable means, to prevent the flow of storm
water onto MD Mall’s property.” Id. at 496. As the party invoking preemption, CSX bears the
burden of proof on this issue. See Green v. Fund Asset Mgmt., L.P., 245 F.3d 214, 230 (3d Cir.
2001). CSX seeks to meet its burden by arguing, in essence, that it cannot prevent the flow of
storm water onto the Mall property without “unnaturally divert[ing]” the water either toward the
track, in violation of federal law, or toward properties owned by third parties, in violation of state
law. In particular, CSX argues it cannot divert water from the right-of-way toward the public
storm water system in South Avenue—the potential solution identified by Arcadis—because a
provision of the State Highway Law of 1945 has been interpreted to prohibit such diversion

43

within a state highway. See Def.’s Proposed Findings ¶ 136 (citing 36 Pa. Stat. § 670-421,27
which makes it “unlawful for any person to discharge sewage or drainage, except surface
drainage, on, or within the legal limits of, any State highway” (emphasis added)).
Based on the existing record, this Court is not persuaded CSX has met its burden to show
it cannot prevent the flow of storm water onto the Mall property through reasonable means. At
trial, experts for both parties addressed the feasibility of the Arcadis proposal that CSX pipe
water from the north side of the right-of-way into the public storm water system, offering
diverging views as to the likelihood that CSX would be able to obtain the necessary regulatory
approvals for the project. Although Mr. Bross opined that CSX’s chances of obtaining the
approvals ranged from “uncertain to unlikely,” Trial Tr. 23, Dec. 16, 2015, he addressed the
issue at a high level of generality in terms of possible hurdles CSX might face and issues that
might have to be analyzed, see id. at 24, and he admitted he had no recent experience obtaining
storm water permits in Pennsylvania, see Trial Tr. 175, Dec. 15, 2015. There is no evidence he
conducted any meaningful on-the-ground investigation into the feasibility of implementing the
Arcadis proposal; in fact, he conceded his opinion was based on his “preliminary review.” See
Trial Tr. 66, Dec. 15, 2015. As to CSX’s argument based on the State Highway Law, CSX
simply asserts, without evidence or legal authority, that PennDOT “has historically interpreted
the surface drainage allowed under Section 421 to only be surface/sheet flow,” and that
“concentrating water and directing it within a state highway has been considered illegal.” Def.’s
Proposed Findings ¶ 136. Notably, while all three experts in this case testified about the Arcadis
proposal, none mentioned PennDOT’s interpretation of the Highway Law as a barrier.

27

Although CSX cites § 421 as 36 Pa. Stat. § 670-522, the correct provision appears to be 36 Pa.
Stat. § 670-421.
44

The Court recognizes that the need for regulatory approvals creates some uncertainty as
to whether the Arcadis proposal is a “reasonable means” of preventing the flow of storm water
onto the Mall property. Absent more concrete evidence that the necessary approvals are not
obtainable, or that the cost of implementing the proposal would be unreasonably high, however,
CSX has not met its burden to prove the Mall’s claims are impliedly preempted by FRSA.
2.

ICCTA Preemption

CSX’s argument that the Mall’s claims are preempted under ICCTA presents a closer
question. Enacted in 1995 for the purpose of “establish[ing] an exclusive Federal scheme of
economic regulation and deregulation for railroad transportation,” Emerson v. Kan. City S. Ry.
Co., 503 F.3d 1126, 1132 (10th Cir. 2007), ICCTA abolished the Interstate Commerce
Commission, the agency previously responsible for oversight of the railroad industry, and
replaced it with the Surface Transportation Board (STB), see Island Park, LLC v. CSX Transp.,
559 F.3d 96, 102 (2d Cir. 2009). The Act grants the STB exclusive jurisdiction over
(1) transportation by rail carriers, and the remedies provided in this part with
respect to rates, classifications, rules (including car service, interchange, and other
operating rules), practices, routes, services, and facilities of such carriers; and
(2) the construction, acquisition, operation, abandonment, or discontinuance of
spur, industrial, team, switching, or side tracks, or facilities, even if the tracks are
located, or intended to be located entirely in one State.
49 U.S.C. § 10501(b). The Act also includes an express preemption clause, specifying “the
remedies provided under this part with respect to regulation of rail transportation are exclusive
and preempt the remedies provided under Federal or State law.” Id. The term “transportation” is
defined broadly to include
(A) a locomotive, car, vehicle, vessel, warehouse, wharf, pier, dock, yard,
property, facility, instrumentality, or equipment of any kind related to the
movement of passengers or property, or both, by rail, regardless of ownership or
an agreement concerning use; and
45

(B) services related to that movement, including receipt, delivery, elevation,
transfer in transit, refrigeration, icing, ventilation, storage, handling, and
interchange of passengers and property.
49 U.S.C. § 10102(9).
The Third Circuit Court of Appeals construed ICCTA’s express preemption provision in
New York Susquehanna & Western Railway Corp. v. Jackson, 500 F.3d 238 (3d Cir. 2007), a
case involving a railroad’s challenge to state regulations governing the practice of
“transloading,” or transferring solid waste from trucks to rail cars for carriage to landfills. The
Court of Appeals first considered whether the activities at issue in the case constituted
“transportation by rail carrier[],” such that they were subject to ICCTA. Id. at 246-51. Upon
concluding they were, the Court of Appeals next addressed the scope of the Act’s preemption
clause. The Court recognized that the Act “does not preempt all state regulation affecting
transportation by rail carrier . . . [;] [r]ather, it preempts all ‘state laws that may reasonably be
said to have the effect of managing or governing rail transportation, while permitting the
continued application of laws having a more remote or incidental effect on rail transportation.’”
Id. at 252 (quoting Fla. E. Coast Ry. Co. v. City of W. Palm Beach, 266 F.3d 1324, 1331 (11th
Cir. 2001)). In particular, the preemption clause does not preclude state and local entities from
exercising traditional police powers over the development of railroad property, “so long as those
regulations do not interfere with or unreasonably burden railroading.”

Id. at 252-53.28

Endorsing an approach taken by the STB and the Second Circuit, the Court of Appeals held a
state law affecting rail carriage will not be preempted under ICCTA “if it does not discriminate
28

By way of example, the Court suggested a state would not be precluded from regulating
aspects of a railroad construction or abandonment project by “prohibiting the railroad from
dumping excavated earth into local waterways” or by “issu[ing] citations or seek[ing] damages if
harmful substances were discharged” during the project. Jackson, 500 F.3d at 252-53.
46

against rail carriage and does not unreasonably burden rail carriage.” Id. at 254. To satisfy the
nondiscrimination requirement, the state law must “address state concerns generally, without
targeting the railroad industry.” Id. To pass muster under the unreasonable burden prong, the
law in question “must not be so draconian that it prevents the railroad from carrying out its
business in a sensible fashion,” and “must be settled and definite enough to avoid open-ended
delays.” Id.
CSX advances two theories as to why the Mall’s claims are preempted under ICCTA’s
preemption provision. First, CSX argues the claims are “categorically preempted” because they
stem from CSX’s construction and maintenance of its track and therefore seek to regulate matters
within STB’s exclusive jurisdiction, namely construction and operation of rail lines. Second,
CSX argues the claims are preempted under the test adopted by Third Circuit in Jackson because
the requested relief, which would likely entail installing a drainage pipe on CSX’s property,
would substantially interfere with CSX’s operations and would require permitting and
preclearance.
CSX’s argument that the Mall’s claims are categorically preempted is based on the STB’s
approach to ICCTA preemption. As CSX notes, the STB has identified “two broad categories of
state and local actions” that are preempted “regardless of the context or rationale for the action”:
(1) “any form of state or local permitting or preclearance that, by its nature, could be used to
deny a railroad the ability to conduct some part of its operations or to proceed with activities the
Board has authorized,” and (2) “state and local regulation of matters directly regulated by the
Board—such as the construction, operation and abandonment of rail lines; railroad mergers, line
acquisitions, and other forms of consolidation; and railroad rates and service.” CSX Transp.,
Inc., STB Finance Docket No. 34662, 2005 WL 1024490, at *2 (Surface Transp. Bd. May 3,

47

2005) (citations omitted).29 While the Third Circuit relied on STB precedent in formulating the
approach to ICCTA preemption adopted in Jackson, it has not adopted the STB’s categorical
approach, and this Court therefore declines to apply that approach here.30

29

Under the STB’s approach, where categorical preemption does not apply, “the section
10501(b) preemption analysis requires a factual assessment of whether that action would have
the effect of preventing or unreasonably interfering with railroad transportation,” an approach
similar, though not identical, to that adopted in Jackson. CSX Transp., Inc., 2005 WL 1024490,
at *3.
30

Although the Court declines to apply the STB’s categorical approach, applying variations of
this approach, the STB and district courts in other circuits have held that state tort claims seeking
redress for flooding caused by a railroad’s construction and maintenance of its tracks and
roadbed are expressly preempted. See Waubay Lake Farmers Ass’n v. BNSF Ry. Co., No. 124179, 2014 WL 4287086, at *6 (D.S.D. Aug. 28, 2014) (negligence, nuisance, and trespass
claims seeking to require a railroad to replace an allegedly undersized culvert under its tracks
sought to manage or govern how the railroad constructed its roadbed and operated its tracks and
were therefore expressly preempted under ICCTA); Pere Marquette Hotel Partners, L.L.C. v.
United States, No. 09-5921, 2010 WL 925297, at *5 (E.D. La. Mar. 10, 2010) (claims for
negligent design and construction of a railroad crossing, tracks, and roadbed, causing flooding,
were preempted; the design and construction of the crossing and roadbed were inextricably
intertwined with the design and construction of the tracks at the crossing and related directly to
the railroad’s rail activity); Maynard v. CSX Transp., Inc., 360 F. Supp. 2d 836, 843 (E.D. Ky.
2004) (holding drainage-related negligence and nuisance claims were preempted where drainage
problem was alleged to have been caused by the construction and/or maintenance of the railroad
tracks and crossings themselves); Tubbs, Docket No. 35792, 2014 WL 5508153, at *4 (Surface
Transp. Bd. Oct. 31, 2014) (trespass, nuisance, and negligence claims were preempted where
plaintiffs alleged the railroad’s improper design, construction, and maintenance of its tracks
caused flooding and property damage because the claims were “based on alleged harms
stemming directly from the actions of a rail carrier . . . in designing, constructing, and
maintaining an active rail line” and were therefore subject to the STB’s exclusive jurisdiction
under § 10501(b)). But see Emerson, 503 F.3d at 1129-30 (holding ICCTA did not expressly
preempt trespass, nuisance, and negligence claims seeking redress for flooding allegedly caused
by a railroad’s improper disposal of old railroad ties and failure to cut vegetation in a drainage
ditch on its property because the conduct complained of did not constitute “transportation”
within the meaning of the statute). The Mall’s claims in this case are similar to some of the
claims other courts have found to be preempted by ICCTA in that the claims concern the
allegedly improper design and maintenance of drainage ditches on or adjacent to CSX’s roadbed.
See Pere Marquette Hotel Partners, 2010 WL 925297, at *4 (holding a roadbed for a railroad
track constitutes “property . . . related to the movement of passengers or property . . . by rail” and
thus qualifies as “transportation” within the meaning of ICCTA (quoting 49 U.S.C.
§ 10102(9)(A)).
48

Under the Third Circuit’s Jackson test, a state law that affects rail carriage will be
preempted under ICCTA’s preemption provision if the law discriminates against rail carriage or
if it unreasonably burdens rail carriage. The Mall’s claims are based on generally applicable
state tort law, and CSX does not argue that law discriminates against rail carriage in any way;
hence, the preemption inquiry in this case turns on whether granting the Mall’s requested
relief—an order directing CSX to develop and implement a fully engineered solution to control
and prevent storm water from discharging onto the Mall’s property—would unreasonably burden
rail carriage.
CSX argues that granting relief in this case will unreasonably burden its rail operations
because the Mall’s preferred remedy (and the only potentially feasible remedy identified to
date)—installing a drainage pipe on the north side of the right-of-way to direct water into the
public storm water system—will require construction “on, over, or under the tracks themselves,”
and will subject CSX to “permitting and preclearance” requirements. Def.’s Proposed Findings
¶¶ 146-47.

Whether requiring a railroad to implement a particular tort remedy would

unreasonably burden railroad transportation is a factual inquiry on which the railroad, as the
proponent of preemption, bears the burden of proof. See Emerson, 503 F.3d at 1133-34.
In A & W Properties, Inc. v. The Kansas City Southern Railway Co., 200 S.W.3d 342
(Tex. App. 2006), a case cited by CSX, the court found the defendant railroad had met its burden
on this issue, holding that state tort claims seeking to require the railroad to enlarge a culvert
under a bridge its tracks crossed was expressly preempted under ICCTA. To establish its
preemption defense, the railroad submitted affidavits from two supervisory employees,
explaining that enlarging the culvert would require the railroad to temporarily shut down a
stretch of its track while construction was being performed, to operate trains at a dramatically

49

reduced speed when the track was not shut down but work was being performed in the area, and
to employ a “rerouting and switch maneuver” that would restrict the length of the trains that
could be used during construction, requiring the railroad to operate additional trains to move the
same amount of freight at increased cost. Id. at 344. The railroad also produced evidence that
the work would cost a minimum of $550,000. Id. Based on this evidence, the court found the
railroad had established that the economic impact of granting the plaintiff’s requested remedy
would interfere with the railroad’s operations and the plaintiffs’ claims were therefore
preempted.
The decision in A & W stands in contrast to other cases in which courts have found a
defendant railroad’s proof lacking on this issue. In Gordon v. New England Central Railroad,
Inc., No. 17-154, 2017 WL 6327105, at *8 (D. Vt. Dec. 8 2017), for example, the defendant
railroad argued the relief requested by adjacent landowners on their trespass and negligence
claims—an injunction requiring the railroad to remove riprap rock the railroad had installed on
the plaintiffs’ property when rebuilding its embankment—would unreasonably burden its rail
operations because it would cost $150,000 and take the rail line out of service for three to four
days. The court found, however, that the railroad had failed to establish that the requested
remedy would have more than an incidental effect on rail transportation where the railroad’s
witness had admitted it might be possible to replace the riprap with a retaining wall without
taking the line out of service. Id. Similarly, in Emerson, the court held that an interrogatory
response in which the plaintiffs described the actions they wanted the defendant railroad to take
to remedy the flooding problem on their property was insufficient proof that providing a remedy
for the plaintiff’s tort claims would unreasonably interfere with railroad transportation. See 503
F.3d at 1133-34. Although the interrogatory response stated the plaintiffs wanted the railroad to

50

install “additional culverts or a railroad bridge/trestle . . . to allow the unimpeded flow of surface
storm water through and under [the] railroad,” there was no evidence the plaintiffs “had any
engineering or other expertise that would qualify them to provide an expert opinion on the
precise steps that would need to be taken to prevent further flooding,” nor any other evidence in
the record of what would be required of the railroad to remedy the situation. Id. at 1134.
Although CSX argues it is “self-evident” that implementing the solution proposed by
Arcadis would interfere with its railroad operations because this solution would require
construction “on, over, or under the tracks themselves,” Def.’s Proposed Findings ¶ 146, there is
no evidence in the record as to what construction the project would actually entail. Even
assuming the project would require construction over or under the track,31 there is no evidence as
to how such construction would be carried out or how disruptive it would be to CSX’s
operations. There is also no good evidence of the magnitude of the cost of implementing the
Arcadis solution, beyond Mr. Bross’s testimony that the cost would certainly exceed Arcadis’s
$50,000 estimate.

See Trial Tr. 25, Dec. 16, 2015.

While there is ample evidence that

implementing the Arcadis solution would require various regulatory approvals, which may or
may not be granted, it is not clear, on this record, that the Arcadis solution is the only means of
remedying the flooding problem.
While the Court concludes CSX has not met its burden to show that federal law preempts
the Mall’s continuing trespass and negligence claims, the Mall has not proved that it is entitled to
relief on either of those claims. Accordingly, judgment will be entered in favor of CSX.

31

It is not clear from the record how, exactly, a pipe installed on the north side of the right of
way would connect to the public storm water system in South Avenue. See, e.g., Trial Tr. 63,
Dec. 14, 2015 (describing the Arcadis solution as involving the installation of additional storm
water inlets on South Avenue).
51

BY THE COURT:

/s/ Juan R. Sánchez
Juan R. Sánchez, J.

52

.