Present:    All the Justices

PATRICIA G. KURPIEL, ET AL.
                                       OPINION BY
v.   Record No. 112192           JUSTICE DONALD W. LEMONS
                                   September 14, 2012

ANDREW HICKS, ET AL.

              FROM THE CIRCUIT COURT OF STAFFORD COUNTY
                        Sarah L. Deneke, Judge

        In this appeal, we consider whether the Circuit Court of

Stafford County ("trial court") erred when it sustained the

demurrer of Andrew C. Hicks and Tammy L. Hicks (together, the

"Hicks") and dismissed the complaint of Patricia G. Kurpiel and

George L. Kurpiel (together, the "Kurpiels") alleging common

law trespass on the grounds that the Kurpiels did not allege

facts stating a cause of action upon which the requested relief

may be granted.

                    I. Facts and Proceedings Below

        On June 1, 2011, the Kurpiels filed a complaint for

declaratory judgment and civil damages against the Hicks in the

trial court.    The Kurpiels' complaint alleged common law

trespass against the Hicks, arguing that the Hicks "did not

develop their land in a reasonable manner" and that the Hicks

"directed and caused storm water . . . to flow upon the

Kurpiel[s'] property, in such amounts and in such quantity as

to cause damage[s] to the Kurpiel[s'] property and impair its

use."    The Kurpiels sought a declaration of their respective
property rights and monetary damages for the Hicks' alleged

trespass.   In response, the Hicks filed a demurrer and motion

to dismiss, arguing that "the Kurpiels d[id] not allege a basis

for declaratory judgment because the acts of the Hicks that the

Kurpiels complain[ed] of ha[d] already 'occurred and matured'

when their [c]omplaint was filed," and the Kurpiels had "other

remedies available."   On August 1, 2011, the trial court

entered an order sustaining the Hicks' demurrer, without

prejudice, as to the Kurpiels' claim for declaratory judgment

and permitting the Kurpiels to file an amended complaint.

     The Kurpiels subsequently filed an amended complaint

containing one count of common law trespass, requesting

injunctive relief to prevent the further trespass of surface

water onto the Kurpiels property as a result of the Hicks'

"unreasonable development of the[ir] adjacent property" and

$35,000 in monetary damages.   The Kurpiels' amended complaint

alleged that the Hicks "did not develop their land in a

reasonable manner," in violation of the modified common law

rule applicable to surface water and, as a result, directed and

caused storm water to run onto the Kurpiels' property, which

caused damage, and such unauthorized entry of storm water

constituted a trespass.

     Specifically, the Kurpiels alleged that the Hicks: (1)

began to develop their property, which adjoined the Kurpiels'

                                2
property, for residential use in early 2007; (2) stripped their

land "of virtually all vegetation"; (3) "excessively cleared

[their land] in violation of state law and County regulations";

(4) did not utilize proper drainage controls; (5) "left the

land unvegetated longer than necessary"; (6) replaced plants

along the respective properties' border "with insufficient and

inadequate vegetative cover"; (7) "significantly altered the

storm water drainage situation, changed the elevation of the

land, and brought in additional fill, which . . . caused

excessive storm water to flow from the Hicks' property onto the

Kurpiel lands"; (8) knew that a storm water problem did not

exist prior to their development of their property, but

continued to "develop[] their property without regard to

creating a new problem"; and (9) failed to control resulting

"sediment loads and siltation running onto the Kurpiel[s']

property."

     The Kurpiels further alleged that: (1) prior to the Hicks'

development of their property, the existing plantings,

vegetation, and topography of the land had contained the water

runoff; (2) with each significant storm, the discharge of storm

water from the Hicks' property physically entered and

interfered with the Kurpiels' exclusive possession of their

property; and (3) none of the Kurpiels' efforts to control the



                               3
resulting surface water drainage, "including diversion of roof

drains, sand bags and plantings" were successful.

     In response, the Hicks filed a "demurrer and motion to

dismiss with prejudice," arguing that "[t]he few factual

allegations contained in the Kurpiels' [a]mended [c]omplaint

[did] not state a cause of action upon which the relief sought"

could be granted.   The Hicks argued that surface water is a

"common enemy" and, under Virginia law, landowners may fight

off surface water subject to the exception set forth in Mullins

v. Greer, 226 Va. 587, 589, 311 S.E.2d 110, 112 (1984) (stating

that "one may, in the reasonable development of his property,

grade it or erect a building thereon and not be liable for

discharging additional diffused surface water as a result

thereof") (internal citations omitted).   The Hicks further

argued that "the Kurpiels [did] not and cannot allege facts

that the Hicks did not develop their property in the 'usual and

customary way' . . . ."

     The Kurpiels filed a memorandum in opposition to the

Hicks' demurrer, arguing that whether the Hicks developed their

property in the usual and customary way is only one factor to

be considered, and that the modified common law rule applicable

to surface water requires consideration of a number of factors

related to reasonable use.   The Kurpiels argued that the Hicks

"significantly altered the storm water drainage, changed the

                                4
elevation of the land, and brought in additional fill, all

causing excessive surface water flow," and these allegations

raised questions regarding the reasonableness of the Hicks'

actions.   The Kurpiels argued that it is immaterial whether the

Hicks had a right to build a home on their land, grade it, or

fend off surface water; rather, the issue is whether the Hicks

"acted reasonably in the development and changes that they

undertook," and whether the Hicks undertook "such actions in a

reasonable manner so as to not injure the property of another."

Accordingly, the Kurpiels argued that they pled sufficient

facts to establish a cause of action for trespass.

     The trial court sustained the Hicks' demurrer with

prejudice, finding that the Kurpiels failed to allege facts

sufficient to support a cause of action for trespass.

Specifically, the trial court held that the Kurpiels' complaint

"fail[ed] to allege facts which could support a claim that the

[Hicks'] use of the property [wa]s unreasonable, that the

[Hicks] acted in bad faith or with an intention to interfere

with [the Kurpiels'] property or that the property

modifications were done improperly or carelessly."

     The Kurpiels timely filed their notice of appeal, and we

granted an appeal on the following assignments of error:




                                5
     1.   The trial court erred in its interpretation and
          application of the modified common law rule governing
          the control of surface water drainage by ruling upon
          whether Plaintiffs' allegations sufficiently pleaded
          that Defendants' use of their property is
          unreasonable rather than whether the Defendants'
          efforts to control surface water was unreasonable.

     2.   The trial court erred in ruling that the Plaintiffs
          failed to allege sufficient facts to support a cause
          of action for trespass based on violation of
          Virginia's modified common law rule [applicable] to
          surface water where Plaintiffs had alleged that
          Defendants (1) developed their land in a reasonable 1
          manner by excessive[ly] clearing their land and
          failing to apply proper drainage controls; (2)
          significantly altered the storm water drainage; (3)
          changed the elevation of the land; (4) brought in
          additional fill; (5) cleared vegetation from legally
          protected areas and between the adjacent properties;
          (6) performed extensive regrading; and (7) violated
          county ordinances and state laws for erosion and
          sediment control, all of which Plaintiffs asserted
          constituted a knowing, careless and unreasonable use
          of land which injured Plaintiffs by directing
          significant surface water and soil erosion onto
          Plaintiffs' land which had never occurred before.

     3.   The trial court erred in ruling that Plaintiffs
          failed to allege sufficient facts to support a cause
          of action for trespass where Plaintiffs had alleged
          that Defendants (1) directed and caused storm water
          to flow to Plaintiffs' land; (2) which included
          substantial amounts of silt and sediment; (3) which
          damaged Plaintiffs['] land by washing out driveways
          and walkways and washing mud, debris and silt into
          the waterway adjoining the Plaintiffs' property.




     1
       The Kurpiels have explained, to our satisfaction, that
"[t]here was a typographical error in the statement of the
error assigned in the Petition for Appeal." The Kurpiels'
Petition for Appeal should have read "developed their land in
an unreasonable manner" rather than "developed their land in a
reasonable manner."
                               6
                            II. Analysis

                       A. Standard of Review

     Well-established principles guide our review of a trial

court's judgment sustaining a demurrer.

     The purpose of a demurrer is to determine whether
     a [complaint] states a cause of action upon which
     the requested relief may be granted. A demurrer
     tests the legal sufficiency of facts alleged in
     pleadings, not the strength of proof.
     Accordingly, we accept as true all properly pled
     facts and all inferences fairly drawn from those
     facts. Because the decision whether to grant a
     demurrer involves issues of law, we review the
     circuit court's judgment de novo.

Abi-Najm v. Concord Condo., LLC, 280 Va. 350, 356-57, 699

S.E.2d 483, 486-87 (2010) (citations and internal quotation

marks omitted).

                      B. The Trial Court Erred
                  in Sustaining the Hicks' Demurrer

     The Kurpiels argue that the trial court erred in

sustaining the Hicks' demurrer as a result of its conclusion

that the Kurpiels "failed to allege sufficient facts to support

a cause of action for trespass based on violation of Virginia's

modified common law rule [applicable] to surface water."    We

agree with the Kurpiels.

     We have previously recognized that an action for common

law trespass to land derives from the "general principle of law

[that] every person is entitled to the exclusive and peaceful

enjoyment of his own land, and to redress if such enjoyment

                                 7
shall be wrongfully interrupted by another."   Tate v. Ogg, 170

Va. 95, 99, 195 S.E. 496, 498 (1938).   We have also recognized:

          [A] trespass is an unauthorized entry onto
     property which results in interference with the
     property owner's possessory interest therein.
     Thus, in order to maintain a cause of action for
     trespass to land, the plaintiff must have had
     possession of the land, either actual or
     constructive, at the time the trespass was
     committed.

          In addition, to recover for trespass to
     land, a plaintiff must prove an invasion that
     interfered with the right of exclusive possession
     of the land, and that was a direct result of some
     act committed by the defendant. Any physical
     entry upon the surface of the land constitutes
     such an invasion, whether the entry is a walking
     upon it, flooding it with water, casting objects
     upon it, or otherwise.

Cooper v. Horn, 248 Va. 417, 423, 448 S.E.2d 403, 406 (1994)

(internal citations and quotation marks omitted).

     Significantly, for the purposes of this case, Virginia

applies the modified common law rule applicable to surface

water.   Mullins, 226 Va. at 589, 311 S.E.2d at 112.    Under this

rule, "surface water is a common enemy, and each landowner may

fight it off as best he can, provided he does so reasonably and

in good faith and not wantonly, unnecessarily or carelessly."

Id. (emphasis added; internal quotation marks omitted).

     We observed in McGehee v. Tidewater Railway Co.:

          Two general rules prevail in the United
     States with respect to surface water, the civil
     law rule and the common law rule. The former is
     thus expressed in the Code Napoleon, sec. 640:

                                8
     "Inferior lands are subjected, as regards those
     which lie higher, to receive the waters which
     flow naturally therefrom to which the hand of man
     has not contributed. The proprietor of the lower
     ground cannot raise a bank which shall prevent
     such flowing. The superior proprietor of the
     higher lands cannot do anything to increase the
     servitude of the lower."

          On the other hand, by what is known as the
     common law rule . . . "surface water is regarded
     as a common enemy, and every landed proprietor
     has the right, as a general proposition, to take
     any measures necessary to the protection of his
     property from its ravages, even if in doing so he
     prevents its entrance upon his land and throws it
     back upon a coterminous proprietor."

108 Va. 508, 509-10, 62 S.E. 356, 356-57 (1908).

Significantly, however, we further stated in McGehee:

          While it is true that this so-called common
     law doctrine prevails in Virginia, it is,
     nevertheless, subject to the important
     qualification, that the privileges conferred by
     it may not be exercised wantonly, unnecessarily,
     or carelessly; but is modified by that golden
     maxim of the law, that one must so use his own
     property as not to injure the rights of another.
     It must be a reasonable use of the land for its
     improvement or better enjoyment, and the right
     must be exercised in good faith, with no purpose
     to abridge or interfere with the rights of
     others, and with such care with respect to the
     property that may be affected by the use or
     improvement as not to inflict any injury beyond
     what is necessary.

Id. at 510, 62 S.E. at 357.

     As in this case, the plaintiff in McGehee brought an

action for trespass against the defendant to recover damages

for losses sustained when the plaintiff's property was flooded.


                               9
Id. at 509, 62 S.E. at 356.    The defendant railway company in

McGehee had "acquired a strip of ground adjoining the

plaintiff's lot . . . for its right of way and passenger

station and approaches."     Id.   In the construction of a roadbed

over its acquired strip of ground, the railway company did not

make a "provision for the escape of surface water through its

premises by culvert, drain, or otherwise.     The result of that

method of construction was to retain and cast back the waters

upon the plaintiff's lot."     Id.   The plaintiff's property was

subsequently flooded and damaged; nonetheless, the trial court

ruled for the defendants in the plaintiff's action for

trespass.   Id.

     Upon review, we held that the trial court in McGehee

"erred in holding, as a matter of law, that no duty rested upon

the defendant to supply reasonably adequate means of escape for

surface water under its roadbed and through its property."      Id.

at 513, 62 S.E. at 358.    We held that the "question, whether or

not the company, in the construction of its road and

improvement of the grounds and approaches to its station, was

reasonably prudent and careful to avoid injury to the plaintiff

from the flooding of surface water, ought to have been

submitted to the jury."    Id. (emphasis added).

     In this case, the Kurpiels' amended complaint alleged one

count of trespass, resulting from the Hicks' careless,

                                   10
unnecessary, and unreasonable development of their property, in

violation of the modified common law rule applicable to surface

water. 2   The Kurpiels' amended complaint alleged that they were

the owners of the damaged land in question, and that the Hicks'

actions resulted in the interference with the Kurpiels' right

to exclusive possession of their land.    The Kurpiels further

alleged an unauthorized entry onto their land from the Hicks'

actions directing and causing storm water, including sediment

and silt, to flow from the Hicks' property onto the Kurpiels'

property.

     Moreover, the Kurpiels alleged in their amended complaint

that the Hicks "did not develop their land in a reasonable

manner" and that the Hicks' actions were "careless, and

unnecessary" because they: (1) stripped their land "of

virtually all vegetation, including unauthorized removal of

vegetation within the Resource Protection Area, a protected

land disturbance zone established by the Chesapeake Bay

Preservative Act"; (2) "cleared and/or improperly disturbed

these protected areas" on their property; (3) "excessively

cleared [their land] in violation of state law and County

     2
       The Kurpiels argue on appeal that they pled alternative
claims of trespass and violation of the modified common law
rule applicable to surface water in the trial court. We
disagree; the Kurpiels' amended complaint clearly alleges only
one count of common law trespass based upon the Hicks' alleged
violation of the modified common law rule applicable to surface
water.
                                 11
regulations"; (4) "did extensive regrading of the property";

(5) changed the elevation of the property; (6) "brought in

additional fill dirt"; (7) "left the land unvegetated longer

than necessary"; (8) demanded the Kurpiels remove plantings

along the property border, and then "replaced such plants with

insufficient and inadequate vegetative cover"; (9) did not use

proper drainage controls; and (10) "failed to control sediment

loads and siltation running onto the Kurpiel[s'] property."

     Whether the actions taken by the Hicks in developing their

property were in fact reasonable, in good faith and not wanton,

unnecessary or careless, is a factual question to be decided by

the fact finder, not a question of law to be decided on

demurrer.   See Mullins, 226 Va. at 589, 311 S.E.2d at 112

(stating that "surface water is a common enemy, and each

landowner may fight it off as best he can, provided he does so

reasonably and in good faith and not wantonly, unnecessarily or

carelessly") (internal quotation marks omitted); McGehee, 108

Va. at 513, 62 S.E. at 358 (concluding that the trial court

erred because "[t]he question, whether or not the [defendant],

in the construction of its road and improvement of the grounds

and approaches to its station, was reasonably prudent and

careful to avoid injury to the plaintiff from the flooding of

surface water, ought to have been submitted to the jury").

Significantly, "we accept as true all properly pled facts and

                                12
all inferences fairly drawn from those facts" when reviewing a

trial court's decision to sustain a demurrer.   Abi-Najm, 280

Va. at 357, 699 S.E.2d at 487.

     Accordingly, we hold that the Kurpiels' amended complaint

alleged sufficient facts to state a cause of action for common

law trespass based upon a violation of the modified common law

rule applicable to surface water and that the trial court erred

in sustaining the Hicks' demurrer.

                        III. Conclusion

     We hold that: (1) the Kurpiels' amended complaint alleged

sufficient facts to state a cause of action for common law

trespass based upon a violation of the modified common law rule

applicable to surface water; and (2) the trial court erred in

sustaining the Hicks' demurrer.    Accordingly, we will reverse

the judgment of the trial court and remand for further

proceedings consistent with this opinion.

                                            Reversed and remanded.




                                  13
