                                                                 NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 _____________

                                      No. 18-1137
                                     _____________

                            MD MALL ASSOCIATES, LLC,
                            t/a MacDade Mall Associates LP

                                             v.

                            CSX TRANSPORTATION, INC.


                            MD MALL ASSOCIATES, LLC,
                                            Appellant
                                 ______________

                       On Appeal from United States District Court
                         for the Eastern District of Pennsylvania
                            (District Court No. 2:11-cv-04068)
                        District Judge: Honorable Juan R. Sanchez
                                      ______________

                   Submitted Pursuant to Third Circuit L.A.R. 34.1(a)
                                 December 11, 2018
                                  ______________

          Before: SMITH, Chief Judge, McKEE, and FISHER, Circuit Judges.

                           (Opinion filed: September 18, 2019)

                               _______________________

                                        OPINION




 This disposition is not an opinion of the full court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
McKEE, Circuit Judge.

       MD Mall Associates, LLC appeals the District Court’s judgment following a

bench trial in favor of Defendant CSX Transportation, Inc., which dismissed MD Mall’s

attempt to hold CSX liable for damage to its downhill property caused by storm water

runoff. For the reasons that follow, we will affirm.

                                             I.1

       In his exceedingly thorough and well-reasoned opinion, Chief Judge Sanchez

explained the Court’s conclusion that MD Mall had failed to sufficiently answer the most

central question for a liability determination—whether the installation of the railroad and

right-of-way owned by CSX altered or changed storm water flow patterns.2 MD Mall

now argues that the District Court misapplied Pennsylvania storm water law, the doctrine

of damnum absque injuria, trespass standards, and negligence standards. We disagree and

need only summarize the District Court’s analysis.

       Trespass liability is established under Pennsylvania law based on a landowner’s

control, collection, and shifting of surface water from one location to another, via an




1
  The District Court had jurisdiction pursuant to 28 U.S.C. §1332. We now have
jurisdiction pursuant to 28 U.S.C. §1291. We review a district court’s factual findings for
clear error and its legal conclusions de novo. See VICI Racing, LLC v. T-Mobile USA,
Inc., 763 F.3d 273, 282–83 (3d Cir. 2014).
2
  MD Mall Assoc., LLC v. CSX Transp., Inc., 288 F. Supp. 3d 565, 588 (E.D. Pa. 2017).

                                             2
artificial channel.3 Pennsylvania common law recognizes the “right of flowage”4—the

right of an upper-landowner to have the surface waters flowing on their land to be

discharged through the “natural water course” onto the land of another.5 However, “an

upper landowner is liable for the effects of surface water running off his property in two

distinct circumstances: (1) where the landowner has diverted the water from its natural

channel by artificial means; or (2) where the landowner has unreasonably or

unnecessarily increased the quantity or changed the quality of water discharged upon his

neighbor.”6 The railroad was constructed in the late 1800s, before the upgradient

residential development was constructed, decades before the Mall was constructed, and a

century before the flooding problem arose. As the District Court concluded:

      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.7
The court, thus, concluded that the Mall had not shown that CSX or its predecessor


3
  Rau v. Wilden Acres, Inc., 103 A. 2d 422, 424 (Pa. 1954).
4
  Pfeiffer v. Brown, 30 A. 844, 845 (Pa. 1895). Pennsylvania courts have addressed the
right of flowage in the context of railroads by explaining that where the diversion of
water onto adjacent land is “the necessary consequence of the construction and
maintenance” of a railroad, a lower landowner can only recover with a showing of
negligence in the construction or maintenance of the rail. Flaherty v. Pittsburgh,
Cincinnati, Chi. & St. Louis Ry. Co, 63 Pa. Super 622, 623 (Pa. Super. Ct. 1916).
5
  Shamnoski v. PG Energy, Div. of S. Union Co., 858 A.2d 589, 605 (Pa. 2004) (quoting
Lucas v. Ford, 69 A.2d 114, 116 (Pa. 1949)).
6
  Bretz v. Cent. Bucks Sch. Dist., 86 A.3d 306, 316 (Pa. Commw. Ct. 2014) (continuing
trespass); LaForm v. Bethlehem Township, 499 A.2d 1373, 1383 (Pa. Super. Ct. 1985)
(negligence).
7
  See MD Mall Assocs., LLC 288 F. Supp. 3d at 588.

                                             3
artificially channeled water from the right of way onto the Mall property.8 Moreover, the

District Court correctly held that MD Mall had not established that the railroad was

constructed in a matter that diverts water from its natural channel.

       MD Mall incorrectly argues that the District Court misapplied the doctrine of

damnum absque injuria. The doctrine provides an alternate liability shield for upper

landowners.9 The District Court relied on long established Pennsylvania law to explain

why the doctrine precluded MD Mall’s recovery.10 “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.’”11

       Finally, as the District Court explained, MD Mall has not established that CSX

was negligent and a landowner only has a duty to control surface area water where one of

the two right of flowage exceptions is met.12 MD Mall failed to sufficiently establish that



8
  See MD Mall Assoc., 288 F. Supp. 3d at 590-91 (finding that the “Mall has not
established that CSX has a duty” and setting out other evidentiary lacunae). Nor did the
Mall contend that the District Court’s evidentiary findings on the negligence claim were
clearly erroneous.
9
  Under this doctrine an upper landowner can avoid liability, even if s/he changed the
property, if the damage to a lower landowner caused by storm water flow occurred based
on a lawful, non-negligent use of property, and the damage was unavoidable. See e.g.,
Pfeiffer, 30 A. at 845; Pennsylvania Coal Co. v. Sanderson, 6 A. 453, 457 (Pa. 1886).
10
   See MD Mall Assoc., 288 F. Supp. 3d at 585.
11
   Id. at 586 (quoting Flaherty, 63 Pa.Super. at 623).
12
   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

                                                4
the water flow patterns in the late 1800s prior to installation of the railroad and right-of-

way.13

                                               II.

         For the foregoing reasons, we will affirm the decision of the District Court. 14




the surface waters flowing over his land.” Id. at 1383. See also MD Mall Assoc., 288 F.
Supp. 3d at 585–86.
13
  See MD Mall Assoc., 288 F. Supp. 3d at 590-91 (finding that the “Mall has not
established that CSX has a duty” and setting out other evidentiary lacunae). Nor
did the Mall contend that the District Court’s evidentiary findings on the
negligence claim were clearly erroneous.
14
  CSX also argued that MD Mall’s claims were preempted by the Federal Railroad
Safety Act and the Interstate Commerce Commission Termination Act, and the District
Court addressed that argument in its opinion. See MD Mall Assocs., 288 F.Supp.3d at
591. However, since we agree that CSX is not liable to MD Mall, we need not revisit the
preemption discussion.
                                               5
