{
  "id": 2822872,
  "name": "Ted GROFF and Christine Groff, Plaintiffs-Appellees, Cross-Appellants, v. CIRCLE K. CORPORATION, Defendant-Appellant, Cross-Appellee",
  "name_abbreviation": "Groff v. Circle K. Corp.",
  "decision_date": "1974-08-07",
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  "last_updated": "2023-07-14T22:44:27.328252+00:00",
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    "date_added": "2019-08-29",
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  "casebody": {
    "judges": [
      "WOOD, C. J., and LOPEZ, J., concur.."
    ],
    "parties": [
      "Ted GROFF and Christine Groff, Plaintiffs-Appellees, Cross-Appellants, v. CIRCLE K. CORPORATION, Defendant-Appellant, Cross-Appellee."
    ],
    "opinions": [
      {
        "text": "OPINION\nHENDLEY, Judge.\nPlaintiffs recovered damages as a result of defendant\u2019s construction of a store and parking lot which caused surface waters to discharge onto plaintiffs\u2019 property. Defendant appeals asserting lack of substantial evidence and contributory negligence. Plaintiffs\u2019 cross-appeal relates to the trial court\u2019s finding and award for plaintiffs\u2019 failure to mitigate damages.\nWe affirm on defendant\u2019s appeal and reverse on plaintiffs\u2019 cross-appeal.\nDefendant built a new store on a parcel of land south of plaintiffs\u2019 lot. Prior to defendant building the store the drainage of surface waters on the lot to the south of plaintiffs was generally away from plaintiffs\u2019 lot. The two lots were approximately the same elevation. During the construction of defendant\u2019s store it built up the lot with fill-dirt three or four feet higher than plaintiffs\u2019 lot. Before defendant\u2019s construction was completed plaintiffs observed a run-off of surface water from defendant\u2019s dirt-filled lot. Defendant was notified of the problem, but no action was taken. Subsequently, defendant blacktopped the parking area. Most of the surface water which fell on this area drained onto plaintiffs\u2019 lot. This caused damage to plaintiffs\u2019 house and studio (converted garage). The house foundation and footings settled, interior and exterior walls sunk and cracked, and the floors buckled. The studio was flooded so that it could not be used for its intended purpose.\nAppeal on Substantial Evidence\nIt is defendant\u2019s position under this point that the trial court erred by not granting defendant\u2019s motion for a directed verdict.\nDefendant would have us differentiate between the rules stated in Rix v. Town of Alamogordo, 42 N.M. 325, 77 P.2d 765 (1938) and Martinez v. Cook, 56 N.M. 343, 244 P.2d 134 (1952), and their factual applicability to this case. We have no reason to do so. Both cases clearly hold that a landowner \u201c . . . may not collect and concentrate . . . water, by means of drains or otherwise, and then turn it upon his neighbor\u2019s land in a volume.\u201d Rix v. Town of Alamogordo, supra. The same rule was fully stated in Little v. Price, 74 N.M. 626, 397 P.2d 15 (1964), quoting with approval from Canon Cy. & C.C.Ry. Co. v. Oxtoby, 45 Colo. 214, 100 P. 1127 (1909):\n\u201c \u2018 * * * In our view of the facts, however, we do not think it makes any difference which rule is to be followed; for whether the relative rights of adjacent landowners as to surface waters is to be determined by the civil-law, or the common-law, or the so-called modified rule, under neither has one owner the right to collect in an artificial channel, or reservoir, or pond, surface water, and discharge it upon his neighbor\u2019s lands to his injury, in a different manner from that in which it would naturally flow, if not interfered with, or to cast it in a greater volume, or permit it to escape, thereon in a more injurious way, either upon the surface, or under the surface, by the natural law of percolation.\u2019 \u201d\nDefendant did not actually use drainpipes and culverts to rechannel the water. But there was evidence that established that defendant, by the manner in which it changed the grade of the land and paved the parking lot, produced an \u201cartificial channel\u201d where water was being collected and discharged onto plaintiffs\u2019 property causing damage.\nDenial of the directed verdict motion was proper.\nAppeal on Contributory Negligence\nDefendant next contends that plaintiffs were guilty of contributory negligence. Our answer is that contributory negligence was not plead, raised by an affirmative pleading (\u00a7 21-1-1(8) (c), N.M. S.A.1953 (Repl.Vol.1970)), or tried by express or implied, consent (\u00a7 21-1-1(15) (b), N.M.S.A.1953 (Repl.Vol.1970)). Neither did defendant seek an amendment to his pleadings. American Institute of Marketing Sys., Inc. v. Keith, 82 N.M. 699, 487 P.2d 127 (1971). Accordingly, the affirmative defense of contributory negligence was waived. Fredenburgh v. Allied Van Lines, Inc., 79 N.M. 593, 446 P.2d 868 (1968).\nThe appeal is without merit.\nCross Appeal on Mitigation of Damages\nThe trial court . found that \u201c . [pjlaintiffs failed to take steps to mitigate their damages as were reasonable and by reason therefore their damages are attributable to their own inaction in the amount of $2,000.00.\u201d Was there substantial evidence to support this finding of $2,000.00? Our answer is in the negative.\nThe trier of fact can use knowledge gained by a view of the premises \u201c . . . not only to interpret the evidence offered, but also as independent evidence of the facts as these appear to him.\u201d Board of County Com\u2019rs of Dona Ana County v. Little, 74 N.M. 605, 396 P.2d 591 (1964).\nThe trial court\u2019s view of the premises in and of. itself, however, will not satisfy the requirement of substantial evidence to support a finding. City of Truth or Consequences v. Pietruszka, 81 N.M. 3, 462 P.2d 137 (1969); Board of County Com\u2019rs of Dona Ana County v. Little, supra. To support a finding there must be substantial evidence of record.\nHere, the record is void of substantial evidence to support the finding that anything plaintiffs could have done would have lessened their damages in the amount of $2,000.00. There being no substantial evidence to support the finding, it must be set aside and the $2,000.00 included in the amount of the judgment award.\nThe judgment is affirmed except for that portion relating to mitigation of damages which is reversed.\nIt is so ordered.\nWOOD, C. J., and LOPEZ, J., concur..",
        "type": "majority",
        "author": "HENDLEY, Judge."
      }
    ],
    "attorneys": [
      "William C. Madison, Branch, Dickson, Dubois & Wilson, Albuquerque, for appellant.",
      "Raymond G. Sanchez, Albuquerque, for appellees."
    ],
    "corrections": "",
    "head_matter": "525 P.2d 891\nTed GROFF and Christine Groff, Plaintiffs-Appellees, Cross-Appellants, v. CIRCLE K. CORPORATION, Defendant-Appellant, Cross-Appellee.\nNo. 1314.\nCourt of Appeals of New Mexico.\nAug. 7, 1974.\nWilliam C. Madison, Branch, Dickson, Dubois & Wilson, Albuquerque, for appellant.\nRaymond G. Sanchez, Albuquerque, for appellees."
  },
  "file_name": "0531-01",
  "first_page_order": 561,
  "last_page_order": 563
}