{ "id": 6140456, "name": "Eugene E. BILO, Jr. v. EL DORADO BROADCASTING CO.", "name_abbreviation": "Bilo v. El Dorado Broadcasting Co.", "decision_date": "2008-02-13", "docket_number": "CA 07-507", "first_page": "267", "last_page": "275", "citations": [ { "type": "official", "cite": "101 Ark. App. 267" }, { "type": "parallel", "cite": "275 S.W.3d 660" } ], "court": { "name_abbreviation": "Ark. Ct. App.", "id": 13370, "name": "Arkansas Court of Appeals" }, "jurisdiction": { "id": 34, "name_long": "Arkansas", "name": "Ark." }, "cites_to": [ { "cite": "94 Ark. App. 12", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6136272 ], "weight": 2, "year": 2006, "opinion_index": 0, "case_paths": [ "/ark-app/94/0012-01" ] }, { "cite": "60 Ark. App. 27", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6136523 ], "weight": 2, "year": 1997, "opinion_index": 0, "case_paths": [ "/ark-app/60/0027-01" ] }, { "cite": "64 Ark. App. 20", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6136426 ], "weight": 2, "year": 1998, "opinion_index": 0, "case_paths": [ "/ark-app/64/0020-01" ] }, { "cite": "188 S.W. 1160", "category": "reporters:state_regional", "reporter": "S.W.", "year": 1916, "opinion_index": 0 }, { "cite": "125 Ark. 364", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1553260 ], "year": 1916, "opinion_index": 0, "case_paths": [ "/ark/125/0364-01" ] }, { "cite": "112 S.W. 173", "category": "reporters:state_regional", "reporter": "S.W.", "year": 1908, "opinion_index": 0 }, { "cite": "87 Ark. 41", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1519147 ], "year": 1908, "opinion_index": 0, "case_paths": [ "/ark/87/0041-01" ] }, { "cite": "644 S.W.2d 615", "category": "reporters:state_regional", "reporter": "S.W.2d", "case_ids": [ 6137967 ], "weight": 3, "year": 1983, "pin_cites": [ { "page": "616-17" }, { "page": "617" }, { "page": "617" } ], "opinion_index": 0, "case_paths": [ "/ark-app/7/0110-01" ] }, { "cite": "1 Ark. App. 110", "category": "reporters:state", "reporter": "Ark. App.", "weight": 2, "year": 1983, "pin_cites": [ { "page": "112" }, { "page": "112" } ], "opinion_index": 0 }, { "cite": "369 Ark. 380", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 4017361 ], "weight": 2, "year": 2007, "opinion_index": 0, "case_paths": [ "/ark/369/0380-01" ] }, { "cite": "73 Ark. App. 64", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6137188 ], "weight": 2, "year": 2001, "opinion_index": 0, "case_paths": [ "/ark-app/73/0064-01" ] }, { "cite": "360 Ark. 543", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 5461582 ], "weight": 2, "year": 2005, "opinion_index": 0, "case_paths": [ "/ark/360/0543-01" ] }, { "cite": "353 Ark. 902", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1155512 ], "weight": 2, "year": 2003, "opinion_index": 0, "case_paths": [ "/ark/353/0902-01" ] }, { "cite": "92 Ark. App. 472", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6142834 ], "weight": 2, "year": 2005, "opinion_index": 0, "case_paths": [ "/ark-app/92/0472-01" ] }, { "cite": "344 Ark. 505", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 210135 ], "weight": 2, "year": 2001, "opinion_index": 0, "case_paths": [ "/ark/344/0505-01" ] }, { "cite": "25 Ark. 364", "category": "reporters:state", "reporter": "Ark.", "year": 1916, "opinion_index": 1 }, { "cite": "188 S.W. 1160", "category": "reporters:state_regional", "reporter": "S.W.", "year": 1916, "opinion_index": 1 }, { "cite": "112 S.W. 173", "category": "reporters:state_regional", "reporter": "S.W.", "weight": 3, "year": 1908, "pin_cites": [ { "page": "174" }, { "page": "174" } ], "opinion_index": 1 }, { "cite": "87 Ark. 41", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1519147 ], "weight": 3, "year": 1908, "pin_cites": [ { "page": "44" }, { "page": "44" } ], "opinion_index": 1, "case_paths": [ "/ark/87/0041-01" ] }, { "cite": "644 S.W.2d 615", "category": "reporters:state_regional", "reporter": "S.W.2d", "case_ids": [ 6137967 ], "weight": 2, "year": 1983, "pin_cites": [ { "parenthetical": "quoting Boone v. Wilson, 25 Ark. 364, 188 S.W. 1160 (1916)" }, { "parenthetical": "quoting Boone v. Wilson, 25 Ark. 364, 188 S.W. 1160 (1916)" } ], "opinion_index": 1, "case_paths": [ "/ark-app/7/0110-01" ] } ], "analysis": { "cardinality": 808, "char_count": 16368, "ocr_confidence": 0.768, "pagerank": { "raw": 6.380125665320789e-08, "percentile": 0.39388686367429143 }, "sha256": "413c2263b084edd3d8c95af1bbd88da0abfe4107b53fca17bc2c0978906d5705", "simhash": "1:d9e6822725eed5f4", "word_count": 2802 }, "last_updated": "2023-07-14T19:59:08.797430+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Pittman, C.J., Robbins, and Bird, JJ., agree.", "Gladwin and Griffen, JJ., dissent." ], "parties": [ "Eugene E. BILO, Jr. v. EL DORADO BROADCASTING CO." ], "opinions": [ { "text": "Josephine Linker Hart, Judge.\nEugene Bilo appeals the trial court\u2019s finding that he diverted a natural watercourse from his property onto the land of El Dorado Broadcasting Company (EDB). Bilo argues that he diverted surface water, which the common-enemy doctrine allowed him to do without incurring liability. He also argues that the trial court did not provide objective criteria to enforce the judgment. We affirm.\nBilo\u2019s property is a rectangular tract located at the corner of Timberlane Drive on the east and Hillsborough Road on the south in El Dorado. EDB owns the land to Bilo\u2019s west. The area is primarily commercial with some residential use to the north. The topography is such that the land slopes downward from the north and west toward the parties\u2019 tracts and the intersection. Water has historically flowed from these upland areas onto Bilo\u2019s tract, continuing south through a culvert under Hillsborough Road, then back to the east through culverts under Timberlane Drive. Before Timberlane was constructed, the water ran through a broad valley south of Hillsborough. According to EDB\u2019s owner, Ross Partridge, Bilo placed land fill on his (Bilo\u2019s) tract and diverted this water onto EDB\u2019s land, endangering EDB\u2019s broadcast tower and guy anchor. EDB sued Bilo on May 10, 2005, to restore the natural water flow.\nThe evidence at trial showed that, when Bilo began developing his property in 2004 or 2005, he placed land fill on virtually his entire tract, including along his border with EDB- Photographs show that the fill was made up of large mounds of dirt and shards of concrete and that it elevated Bilo\u2019s tract considerably higher than EDB\u2019s. Before the fill was placed, Bilo\u2019s tract was a swampy lowland, containing willow trees, mud, and beaver dams. Ross Partridge testified that, prior to Bilo\u2019s fill activities, small rainfalls did not cause water to flow onto EDB\u2019s land, and only twenty to twenty-five percent of water from heavy rainfalls did so. But, he said, after Bilo\u2019s placement of the land fill, one hundred percent of the upland water flowed onto EDB\u2019s property. Partridge feared that the increased water flow would weaken the foundation of EDB\u2019s tower. He told the court that he was not asking Bilo to remove the land fill but to put in a ditch or culverts. He referred, as an example, to a large ditch constructed by First Financial Bank, located south across Hillsborough. This ditch controlled the flow of water as it made its way southward.\nRobert Edmonds, the city of El Dorado\u2019s public works director, testified that this locale was a significant drainage area with enough flow to entice beavers to \u201cdo their work\u201d building dams. He testified that the city removed beaver dams from the Bilo tract in approximately 2003 because \u201cthrough that creek bottom there is a flood plain\u201d and \u201cwhen the creek is obstructed . . . the base flood [level] then rises.\u201d The water flow was restored after the dams were eradicated. But, Edmonds said, about a year later, Bilo \u201cstarted hauling fill in there and filling up the whole bottom.\u201d Edmonds received several calls asking \u201cwhy this marsh land was being filled in.\u201d He contacted Bilo and told him the property should be \u201cculverted.\u201d Bilo thought the city should take care of the culverts, and he continued to fill the land. Edmonds said that water did not percolate through the fill. Rather, the fill operated like a dam or levee, and water now flowed between the Bilo tract and the EDB tract at an elevation lower than the fill. The drainage situation was worse, he stated, than when the beaver dams were there, but culverts or ditches could be used on Bilo\u2019s land to address the problem. Edmonds said, \u201cyou just can\u2019t put fill in the water way.\u201d\nBilo testified that the area in question was in a flood plain, was a significant drainage area, and was, at least in part, a \u201cwetland.\u201d He sought a permit from the Corps of Engineers to do the fill work after the Corps informed him that it was investigating \u201ca discharge of fill material into a wetland associated with an unnamed tributary of Bayou de Loutre.\u201d Bilo\u2019s application listed the Bayou de Loutre as the body of water connected with the project. Thereafter, the Corps issued the permit authorizing Bilo to discharge fill material \u201cinto waters of the United States associated with the construction of a commercial development.\u201d The permit expressly stated that it did not authorize work that could adversely affect adjacent property. Bilo testified that he was merely filling in his property as a former owner had done to prevent erosion, though he said that he did \u201celevate\u201d the fill by a few additional feet. He also said that he intended for the fill to slope toward Timberlane on the east so that the water would flow onto the curb of the street. He denied any damage to EDB\u2019s land. Yet, he agreed that he was in no position to dispute Partridge\u2019s testimony that more water now flowed onto EDB\u2019s property.\nThe court found that the drainage across Bilo\u2019s land was part of a natural watercourse and that Bilo\u2019s diversion of water onto EDB\u2019s property was unreasonable. Bilo was enjoined \u201cfrom further fill activities\u201d on the west side of his property and was ordered to construct, at his own expense, \u201cdrainage facilities to prevent no more than 20% of the flow of water\u201d onto EDB\u2019s land. If Bilo chose to construct the drainage ditch on the west side of his tract, EDB was to contribute twenty percent of the land required. Bilo appeals from that ruling.\nThis is a case in equity involving the issuance of an injunction, and our review is therefore de novo. See generally Ark. Game & Fish Comm\u2019n v. Sledge, 344 Ark. 505, 42 S.W.3d 427 (2001); Clark v. Casebier, 92 Ark. App. 472, 215 S.W.3d 684 (2005). We review the trial court\u2019s decision to award injunctive relief for an abuse of discretion, see United Food & Comm. Workers Int\u2019l Union v. Wal-Mart Stores, Inc., 353 Ark. 902, 120 S.W.3d 89 (2003), and we review the court\u2019s factual findings leading to the issuance of the injunction under the clearly-erroneous standard. See So. College of Naturopathy v. State, 360 Ark. 543, 203 S.W.3d 111 (2005); City Slickers v. Douglas, 73 Ark. App. 64, 40 S.W.3d 805 (2001). A finding is clearly erroneous when, although there is evidence to support it, the appellate court, upon viewing the entire evidence, is left with the definite and firm conviction that a mistake has been committed. See Ligon v. Stewart, 369 Ark. 380, 255 S.W.3d 435 (2007).\nBilo argues that the trial court erred in finding that he diverted a natural watercourse and, consequently, that the court erred in judging his conduct under a reasonableness standard. He contends that the court should have found that he diverted mere surface water, which would entitle him to the benefit of the standard set forth by the common-enemy doctrine, to wit:\nWhere no watercourse exists ... a landowner is justified in defending against surface runoff without incurring liability for damages unless injury is unnecessarily inflicted upon another which, by reasonable effort and expense, could be avoided.\nSee Boyd v. Greene County, 1 Ark. App. 110, 112, 644 S.W.2d 615, 616-17 (1983). Bilo also argues that, under our supreme court\u2019s holding in Levy v. Nash, 87 Ark. 41, 112 S.W. 173 (1908), his status as an urban landowner gave him even more freedom to fend off surface water without incurring liability.\nOur law defines a watercourse as:\n[A] running stream of water; a natural stream, including rivers, creeks, runs and rivulets. There must be a stream, usually flowing in a particular direction, though it need not flow continuously. It may sometimes be dry. It must flow in a definite channel, having a bed and banks, and usually discharges itself into some other stream or body of water. It must be something more than mere surface drainage over the entire face of the tract of land occasioned by unusual freshets or other extraordinary causes.\nBoyd, 1 Ark. App. at 112, 644 S.W.2d at 617 (1983) (quoting Boone v. Wilson, 125 Ark. 364, 188 S.W. 1160 (1916)). We see no clear error in the trial court\u2019s finding that the water diverted by Bilo was a watercourse. Accordingly, we need not address his arguments concerning diversion of surface water.\nThe evidence showed that the water moved through Bilo\u2019s tract with such flow and direction that beavers built dams, thus indicating a flow through a definite channel. The large drainage ditch constructed by First Financial Bank, the parties\u2019 neighbor to the south, is further indication of the water\u2019s force, volume, and constant flow along this path. Additionally, the water was referred to by public works director Robert Edmonds as a \u201ccreek\u201d and a \u201cwater way.\u201d Corps of Engineers documents stated that Bilo had discharged fill material into a \u201cwetland associated with an unnamed tributary of Bayou de Loutre,\u201d and Bilo\u2019s application listed the Bayou de Loutre as the body of water connected with the project. And, the court found that the water ultimately drained south and east \u201cinto Loutre Creek.\u201d These factors demonstrate that more than mere surface water flowed across Bilo\u2019s tract.\nWe therefore have no definite and firm conviction that the trial court was mistaken when it characterized the diverted water as a watercourse. We are not dissuaded by the trial court\u2019s lack of findings regarding the presence of well-defined bed and banks. Their absence may be explained by the fact that the water had been diverted away from this course at least once in the past and that the water had begun to coalesce along this course once again after Timberlane Drive was constructed. We also distinguish Boyd, supra, on which Bilo relies. There, the evidence was \u201cvirtually undisputed\u201d that the water in question was \u201cmere surface drainage.\u201d Boyd, 7 Ark. App. at 113, 644 S.W.2d at 617. That matter is in great dispute here.\nBilo argues next that the trial court should have provided a legal description of that part of his land that he was enjoined from filling. A trial court\u2019s order must provide a legal description when locating boundary lines or easements. See Johnson v. Jones, 64 Ark. App. 20, 977 S.W.2d 903 (1998); Jennings v. Burford, 60 Ark. App. 27, 958 S.W.2d 12 (1997). Bilo cites no persuasive authority that these holdings should be applied in a case that does not involve a dispute over property lines or ownership.\nAffirmed.\nPittman, C.J., Robbins, and Bird, JJ., agree.\nGladwin and Griffen, JJ., dissent.\nBilo argues for the first time in his reply brief that the trial court erred in allowing Edmonds to testify as an expert. We do not address arguments raised for the first time in a reply brief. See Abdin v. Abdin, 94 Ark. App. 12, 223 S.W.3d 60 (2006).\nBilo does not challenge the trial court\u2019s finding that his conduct was unreasonable.", "type": "majority", "author": "Josephine Linker Hart, Judge." }, { "text": "Robert J. Gladwin, Judge,\ndissenting. I believe that the t: ..trial court was clearly erroneous in finding that the drainage across appellant\u2019s land was a natural watercourse, and therefore I would reverse. A natural watercourse is defined as:\n[A] running stream of water; a natural stream, including rivers, creeks, runs and rivulets. There must be a stream, usually flowing in a particular direction, though it need not flow continuously. It may sometimes be dry. It must flow in a definite channel, having a bed and banks, and usually discharges itself into some other stream or body of water. It must be something more than mere drainage over the entire face of the tract of land occasioned by unusual freshets or other extra ordinary causes.\nBoyd v. Greene County, 7 Ark. App. 110, 644 S.W.2d 615 (1983) (quoting Boone v. Wilson, 25 Ark. 364, 188 S.W. 1160 (1916)).\nThe trial court listed the following reasons for finding the drainage a natural watercourse:\na. The watershed which produces the drainage is large in area. The exact dimensions are not in evidence, but the area includes a number of streets and houses to the north and northwest, businesses to the west along the north side of Highway 82B and undeveloped land to the north owned by Bilo\u2019s company.\nb. Beavers used to inhabit the area.\nc. The property of E.D. Broadcasting constitutes minuscule amount of the watershed area. Likewise only a minuscule amount of the water draining across Bilo\u2019s land came from the land of E.D. Broadcasting. Conversely, the vast majority of the water comes from the property of other owners, including Bilo\u2019s company.\nd. Bilo\u2019s land has long been a drainage area while E.D. Broadcasting\u2019s land has been used for radio stations for about thirty years.\ne. The land of Bilo was identified as wetlands by the U.S. Corp. of Engineers and a permit for the fill was required.\nNone of these factors fit the definition of a watercourse and in fact confirm that this is surface water. The court describes no definite channel with bed and banks. In fact it seems to state that water runs from the homes and business to the north and northwest, from the business to the west and from the contiguous land to the north. Apparently this watercourse runs both to the south and the east and contains streets and houses, but no actual banks or bed.\nThe fact that beavers once inhabited the area is of no import. There is no evidence in this record that beavers will only inhabit a natural watercourse as defined by Arkansas case law.\nThat E.D. Broadcasting constitutes a minuscule amount of the watershed only reinforces that the water is flowing from several directions and is not a part of a defined channel. Further, that appellant\u2019s land has long been a drainage area proves that this may be a collection area for surface water but not a natural watercourse that must usually discharge itself into some other stream or body of water, as required by our definition of a natural watercourse. Finally, the Army Corps, of Engineers map that was introduced along with its letter of June 13, 2005, does not show any unnamed tributary ofBayou de Loutre, and does not show where the parties\u2019 properties are located.\nThis land is a developed urban area in El Dorado, with a car lot, residential area, and other businesses located at or near this intersection. The pictures that were introduced clearly show that if there had ever been a \u201ctributary\u201d or \u201ccreek,\u201d it has been obliterated by the development of the area. This is now an urban intersection with roads and man-made culverts. I simply believe the trial court\u2019s finding that this drainage is a natural watercourse is not supported by the evidence and is clearly erroneous.\nBecause I would find the drainage to be surface water, I believe that Levy v. Nash, 87 Ark. 41, 112 S.W. 173 (1908), controls. In Levy the Arkansas Supreme Court stated:\nThe lot of the defendant is in the midst of a populous city. The rule which governs the right to dispose of surface water in agricultural districts does not apply to -such property. It is set apart, held and owned for building purposes. To make it useful for this purpose the owner has the right to fill it up, elevate it, to ditch it, to construct building on it in such a manner as to protect it against the surface water of an adjoining lot. If in so doing he presents the flow of surface water upon his lot, the owner of the higher lot has no cause of action against him. This is necessary incident to the ownership of such property. A contrary rule would operate against the advancement and progress of cities and towns and to their injury, and would be against public policy.\n87 Ark. at 44, 112 S.W. at 174.\nUnder the rule set out in Levy, \u201cThe owner has the right to fill it up, elevate it, to ditch it, to construct buildings on it in such a manner as to protect it against the surface water of an adjoining lot.\u201d 87 Ark. at 44, 112 S.W. at 174. Here the appellant filled it up as provided in Levy. Therefore appellant could divert the water as he did.\nAs I believe that a natural watercourse as defined by our cases does not flow through this paved intersection in El Dorado, I would reverse.\nGriffen, J., joins.", "type": "dissent", "author": "Robert J. Gladwin, Judge," } ], "attorneys": [ "Compton, Prewett, Thomas & Hickey, LLP, by: Floyd M. Thomas, Jr., for appellant.", "Vickery & Carroll, P.A., by: Ian W. Vickery, for appellee." ], "corrections": "", "head_matter": "Eugene E. BILO, Jr. v. EL DORADO BROADCASTING CO.\nCA 07-507\n275 S.W.3d 660\nCourt of Appeals of Arkansas\nOpinion delivered February 13, 2008\n[Rehearing denied March 19, 2008.]\nCompton, Prewett, Thomas & Hickey, LLP, by: Floyd M. Thomas, Jr., for appellant.\nVickery & Carroll, P.A., by: Ian W. Vickery, for appellee.\nGLADWIN and Griffin, JJ., would grant rehearing." }, "file_name": "0267-01", "first_page_order": 297, "last_page_order": 305 }