Question: We have not had rain for a long time, and I have really welcomed the rain we received so far this season. Unfortunately, my neighbor’s yard is higher than mine and it drains into my backyard and not into the street. The peak rainfall in the last week has caused the ground to be saturated, and the runoff from my neighbor’s yard has caused flooding in my backyard and some flooding in my house. I don’t have flood insurance. What are my remedies?
Answer: For some, our recent rains are less of a blessing and resemble something else that frequently flows downhill. But the law is on your side. As the “upper owner,” your neighbor is legally responsible to you, the “lower owner,” for the surface water discharge that has caused flooding to your property. Assuming that you have not done anything unreasonable to your property to cause or increase the damages, you can bring a lawsuit against your neighbor and likely prevail.
Before rushing into court, however, you would be well advised to alert your neighbor to your damages and his or her exposure to liability. This might prompt some action and result in a solution to the problem.
The law regarding surface water discharge differs from state to state. Generally speaking, there are three different rules that are applied depending on location: the “common enemy” rule, the “civil law” rule, and the rule of “reasonable use.” In a number of states in the east, the laws treat the discharge of water under what is called the “common enemy” doctrine. The “common enemy” doctrine allows a landowner to take any measures to repel surface waters in any way without considering the interests of adjoining landowners.
The opposite of the “common enemy” doctrine approach to surface water is the “civil law” rule, which recognizes that the “lower owner” must accept the naturally flowing surface water from the “upper owner.” As a corollary to this rule, any development of an upper parcel resulting in “unnatural” water flow renders the upper owner liable for any damages.
California used to follow the “civil law” rule, but the rule hindered development of land. Since real estate development changes the natural flow of runoff, any project would require very careful consideration of the “unnatural” runoff’s effects. So the court changed the rule and looked to negligence law principles, inviting a measure of “reasonableness” into any dispute between landowners.
Fifty years later, California still follows the modified “civil law” approach known as the “rule of reasonable use.” This rule makes a landowner responsible for discharged surface water so as to minimize the harm and burdens to surrounding neighbors. In any dispute, the court will look at all the facts and circumstances surrounding the situation. If each party is found to be reasonable in the use of the land, the upper owner will ultimately be responsible for any damages to the lower owner caused by the runoff. If the lower owner is shown to have acted unreasonably, the upper owner can be protected from liability.
It’s hard to tell from your question, but it doesn’t sound like you have done anything that is unreasonable. On the other hand, your neighbor’s landscaping is causing a flood on your property. That’s not reasonable, so you will likely prevail.
Even though your case appears to be strong, you should still take measures to minimize any damages. Even though a lack of affirmative action on your part will not deny you relief in court, a failure to act may be relevant to the computation of your damages. For example, if you have some form of drainage from your yard, you should use your best efforts to ensure that the drain is functioning as well as it can.
No one should not have to live under the threat of flood waters from a neighbor. Make your potential case known, and your neighbor may take you up on an offer to deal with the problem. If that doesn’t work, your next move may be to inundate him or her with legal proceedings.
Preston Morgan is a partner at Kopper, Morgan & Dietrich, a Davis law firm providing family law, estate planning and trust litigation representation. His column is published every other week in the Davis Enterprise. To pose a question to Preston Morgan, contact him at https://kopperlaw.com.
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