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MICHAEL SCOTT v. GLEN IVES

Real property — Plugged drain pipe —  Relevance of testimony

Appellant (Plaintiff below), Michael Scott, challenges essentially the testimony of Appellee (Defendant below), Glenn Ives, who testified during the defense case-in-chief regarding his on-the-eve of trial discovery of an obstruction to a poly-vinyl chloride (PVC) drain pipe on Ives’s property that figured to some degree in the underlying suit about storm water run-off from his property onto Scott’s property. Scott’s suit against Ives alleged nuisance and negligence caused by storm water runoff from Ives’s property. Ives, during direct examination in his defense case, claimed that someone trespassed onto his property at some unspecified time, dug up and cut an underground PVC drainage pipe, and then plugged the remaining pipe before reburying it. Although Ives was not permitted to speculate who the malefactor may have been, it is worth noting that Scott had conceded earlier in his case-in-chief, during cross-examination, that he had entered onto Ives’s property on a prior occasion and applied caps to the exposed ends of four drain pipes on Ives’s property, including the same pipe involved in the later discovered incident. Scott, sensitive to the obvious implication that he may have been the actor in both incidents involving the pipes, challenged Ives’s testimony as irrelevant. If the testimony was deemed relevant, however, Scott claimed that the testimony was inadmissible as unduly prejudicial evidence of a bad act. Scott demands, if we were to agree with him, a new trial.

Ives responds that the testimony regarding the latter obstructed PVC pipe was relevant to whether any flow of storm water onto Scott’s property was of a degree to cause erosion. If the fact finder found decreased storm water run-off, a finding of nuisance and consequential damages became less likely. Ives contends also that his testimony regarding the obstructed PVC pipe was not evidence of a bad act specifically on the part of Scott, nor did it have prejudicial effect on his ability to have a fair consideration of his claims as plaintiff.

Scott presents in his brief one umbrella question for our consideration, which we rephrase slightly:

Did the trial court commit reversible error by admitting Ives’s irrelevant testimony regarding the plugged PVC pipe on his property?

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