Dear Alex: In the recent storm, my neighbor dug a small trench that diverts rain water from his yard and into mine, and is flooding my back yard!
Can he do that?
The recent rain storms have dumped more water than we have seen in many years. Of course, this water is welcomed and desperately needed, but the high volume of rain in such a short period of time has also resulted in a flood of questions being sent to my email inbox. One of the common themes among these questions surrounds obligations between neighbors for water runoff.
During the recent dry years, changes to the physical landscape of yards and real estate have changed the way water flows over property. In many cases, the recent storms have been the first revelation of the true impact of these surface water diversions. Similarly, some property owners have taken steps during the storm to prevent damage to their property, flooding, or other undesirable effects of so much water raining down.
In its natural flow, the flow that would result from the effect the natural landscape and the tendency of water to travel downhill, it is not the obligation of the uphill neighbor to prevent surface water runoff from flowing onto the property of his or her downhill neighbors. However, when the neighbor has created an unnatural diversion or flow of surface water onto his neighbor’s property, the rules change.
The law provides that harmful surface water may be diverted where such a diversion is reasonable, in light of the surrounding circumstances, including the amount of harm caused, the foreseeability of that harm, and balancing of the utility of the diversion and the harm it causes.
Whether an owner’s conduct is legal is based on the “reasonableness” of his actions, determined by the facts and circumstances of each situation. Determining “reasonableness” makes it difficult to predict the outcome of these disputes and can lead to litigation.
Courts have laid out concrete rules when one or both parties act reasonably.
An uphill neighbor taking reasonable steps to divert surface water from his land is not liable for damages caused to the downhill neighbor.
If the downstream neighbor diverts surface water to reasonably protect against foreseeable water damage, then the upstream owner cannot alter the natural drainage of surface water in a way that harms the downstream property, even if the alteration is reasonable.
If both owners are acting reasonably, the upstream landowner is liable to the downstream landowner if he changed the natural system of drainage and harmed the downstream landowner.
Some methods to protect your property can include sandbagging areas vulnerable to water accumulation, or building a wall to restrict the flow of water onto the property. Before taking these steps, neighbors are encouraged to consult professionals such as civil engineers, or general contractors to help reduce the burden a chosen diversion method may pose on a neighbor.
Neighbors are encouraged to communicate with one another to find agreeable ways to protect one another’s land.
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