MD Mall Assocs., LLC v. CSX Transp., Inc.
MD MALL ASSOCIATES, LLC v. CSX TRANSPORTATION, INC.
Attorneys
*568Marc B. Kaplin, Pamela Tobin, Kaplin, Stewart, Meloff, Reiter and Stein, P.C. Union Meeting Corp. Ctr., Blue Bell, PA, for MD Mall Associates, LLC., Sharon L. Caffrey, Patrick John Kearney, Jr., Duane Morris LLP, Philadelphia, PA, for CSX Transportation, Inc.
Full Opinion (html_with_citations)
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 FACT
A. The Existing Topography of the Area in Question
Plaintiff owns the MacDade Mall, a shopping center located in Delaware County, *569Pennsylvania. 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.
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-of-way. 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.
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,
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.
On the south side of the track, the land slopes upward from the low point on the right-of-way toward the residential neighborhood further to the south.
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 earlier
During significant rain events,
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 right-of-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.
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.
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 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.
*572The 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 right-of-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-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.
Mr. Bross's estimate, in contrast, overstates the amount of storm water on the right-of-way 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 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 *573west 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 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.
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 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.
*574See 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," noting "[e]very construction project in America going back to the 1800s, 1700s used cut and fill." Id. at 71-73, 80, 130.
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 *575himself 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.
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 *576of 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 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-of-way, 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 right-of-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 Mall intended to maintain the existing elevations, not to increase them.
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.
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-of-way 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. 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,
Although the construction drawings contemplated the installation of 60 linear feet of 18-inch 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 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 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)
*579(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 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 *580Mall property, with the easternmost 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. 95-96, 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, or compacting, the ballast to create a smooth, level, raised surface for the track. See id. at 52-56; Ex. 37 at 63-65.
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, 90-91, 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 right-of-way are speculative. Although *581Dr. 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-of-way and increased the velocity of water flowing from west to east on the north side of the right-of-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.
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-of-way may have caused flooding on the Mall property in earlier years. See Trial Tr. 140-41, Dec. 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 *582down 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. 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.
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 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 *583Kleczkowski 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.
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 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 100-year 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 *584either side has investigated the issue in any 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 ,
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 ,
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."
Even where the lower landowner shows the upper landowner has "alter[ed] the natural conditions so as to change the *585course 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 ,
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. ,
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 ,
*586White ,
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 ,
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 ,
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 ,
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 "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 ,
*588Although 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 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 post-track 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 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 ,
Citing Kopka v. Bell Telephone Company of Pennsylvania ,
*590Insofar 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. , 64 Pa.Cmwlth. 587,
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 ,
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 ,
Although the Mall contends CSX has a duty to control the surface water on its right-of-way 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.
*591Moreover, 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 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 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 *592to railroad safety ...until the Secretary of Transportation ...prescribes a regulation or issues an order covering the subject matter of the State requirement."
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."
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."
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 *593right-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.
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. ,
(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.
(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 *594(B) services related to that movement, including receipt, delivery, elevation, transfer in transit, refrigeration, icing, ventilation, storage, handling, and interchange of passengers and property.
The Third Circuit Court of Appeals construed ICCTA's express preemption provision in New York Susquehanna & Western Railway Corp. v. Jackson ,
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 *595to 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,
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 *596relief-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 ,
In A & W Properties, Inc. v. The Kansas City Southern Railway Co. ,
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,
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,
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.
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.
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.
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.
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.
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-of-way and the Mall property is on the right-of-way, just south of the property line. See
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.
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 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.
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).
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.
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.
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).
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.
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.
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.
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. 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).
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.
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.
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").
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.
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-of-way to the Mall property at that time. Id. at 54.
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. 25-26, 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.
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.
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 ,
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 ,
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 right-of-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 ,
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."
Although CSX cites § 421 as 36 Pa. Stat. § 670-522 , the correct provision appears to be 36 Pa. Stat. § 670-421 .
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 ,
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. ,
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. 12-4179,
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).