“The 2Point Way”—Just Go With the (Surface) Flow

Major flooding is a frequent staple for national news headlines, but another ‘water-related’ problem is less spectacular, yet often causes problems for property owners and land use professionals. Surface flow waters—and associated damage—has been the source of numerous disputes between adjoining property owners.

Typically, courts recognize some form of any of three well-established doctrines when dealing with water that flows over land before reaching a recognizable channel. The “Common Enemy Doctrine,” the “Civil Law Rule,” or the “Reasonable Use Doctrine” may control, depending on the specific situation and the jurisdiction where the case is heard. In Lucas v. Rawl Family Ltd.: 359 S.C. 505 (2004), the South Carolina court recently concluded that all three have merit.

Common law, state statute and local development standards often combine to determine how surface water may be diverted or re-directed. All three factors can vary significantly between states, and there may be as many combinations of these rules as there are states and agencies to apply them.

The location of the tracts and their relationship to municipal boundary lines may affect the application of local zoning or development standards, but does not change the applicable common law principles. In Holden v. Edwards Specialties: 62 So. 3d 1029 (2009) the Alabama court applied the modified civil law rule after specifying that the dominant estate was located within the municipal boundary and the servient estate was outside the municipality.

Common Law Rule (Common Enemy Doctrine) & Variants

In the United States, the Common Enemy Doctrine may be traced to early rulings in Massachusetts (Gannon v. Hargadon: 92 Mass. 106 (1865)) and New Jersey (Town of Union v. Durkes: 38 N.J.L. 21 (1875)) These two benchmark opinions emphasize the paramount right of an owner to make changes to drainage patterns on his land regardless of the misfortunes that result for those unfortunates below. The uncompromising attitude held by these early decisions generally has been either replaced or limited in more modern common law.

A recent Connecticut decision provides a good summary of recent changes made to the original common enemy doctrine. Keller v. Town of Southbury: UWYCV086000950S (2010) confirms that the owner of one tract can allow surface water to flow onto the adjoining parcel. However, this ruling also concludes that the common enemy doctrine has been modified by considerations of reasonable use. This adjustment is considered beneficial to society because it allows the court some discretion when dealing with the unique circumstances of each case. Many courts today describe this merging of concepts as the “Modified Common Enemy Doctrine.”

Keller v. Town of Southbury concludes that in its modified form, the landowner make take only those reasonable steps that are dictated by the relevant surrounding circumstances. Issues considered may include the motives of the landowner, the cost of damages and whether damages were foreseeable.

A recent Maine ruling adds another caveat in Harris v. The Woodlands Club: 55 A.3d 449 (2012). Under this variant, the upper landowners may be held liable if they collect or concentrate surface waters into basins or drainage structures and then discharge the water at accelerated rates over neighboring tracts—particularly those that would not have been the recipients of the naturally occurring surface flow.

Civil Law Rule & Modifications

In McGehee v. Tidewater Railroad Co. 108 Va. 508 (1908), The Virginia court distinguished the Civil Law Rule from its counterpart: Two general rules prevail in the United States with respect to surface water, the civil law rule and the common law rule. The former is thus expressed in the Code Napoleon, sec. 640: “Inferior lands are subjected, as regards those which lie higher, to receive the waters which flow naturally therefrom to which the hand of man has not contributed.  The proprietor of the lower ground cannot raise a bank which shall prevent such flowing.  The superior proprietor of the higher lands cannot do anything to increase the servitude of the lower.

Ogburn v. Connor: 46 Cal. 346 (1873) describes a Civil Law Rule that implies a “natural easement” between two adjacent fields when one field is lower than the other and the two are situated in such a way that water naturally flows from the upper field and crosses the lower. In such a scenario, this court held that “The prevailing doctrine appears to be that when two fields are adjacent and one is lower than the other, the owner of the upper field has a natural easement to have the water that falls upon his land flow off from the same upon the field below, which is charged with a corresponding servitude.”

         Ogburn v. Connor affirms that while the owner of the lower field has no right to erect barricades to divert the water from the lower field, the owner of the upper field is not allowed to excavate in order to concentrate or re-direct water flow in a manner at variance with the natural drainage of the water.

The judge correctly observed that several jurisdictions did not follow the principles described above. In addition, this case noted that different concepts might apply depending on the character of the land and the location of the subject parcel. For example, courts generally are reluctant to enforce this principle when clear-cutting or extensive development significantly alters the original drainage patterns. The standards applied in this case actually represent an example of the “modified civil law rule”.

More recently, the California courts framed the “modified civil law rule” in a very succinct manner: “(1) if the upper owner is reasonable and the lower owner unreasonable, the upper owner wins; (2) if the upper owner is unreasonable and the lower owner reasonable, the lower owner wins; and (3) if both the upper and lower owner are reasonable, the lower owner wins also.” Skoumbas v. City of Orinda:165 Cal. App. 4th 783 (2008)

In Greiner v. Wemer: No. 5-015/04-0380; Iowa App., Iowa courts have developed a similar standard: “There has been adopted and developed in this jurisdiction what may best be characterized as a modified civil law rule which recognizes a servitude of natural drainage as between adjoining lands. Under this concept a servient estate must accept surface waters which drain thereon from a dominant estate. On the other hand, no right exists to alter the natural system of drainage from a dominant estate in such manner as to substantially increase the servient estate burden.” Some local development regulations apply a variation of this idea to mandate that water flow off of a tract may not occur at a greater rate than would occur when the tract was undeveloped.

Reasonable Use Doctrine

The “Reasonable Use Doctrine” originated as a modifier of the two standards described above and is still considered a lesser variant in some states. In Westland Skating Center v. Machado Buick: 542 So. 2d 959 (1989), the Florida court considered the relationship between the Civil Law Rule, the Common Enemy Doctrine and the Reasonable Use Doctrine. Admitting that other states consider the Reasonable Use Doctrine to be on co-equal with the earlier standards, this court applies it as a “tie breaker” where neither of the original doctrines seem to apply.

However, recent years have seen many courts embrace the Reasonable Use Doctrine as a distinct third alternative—possibly as a superior solution in these disputes. Kueffer v. Brown is a recent Missouri ruling that describes the recent trend from the earlier standards to the Reasonable Use Doctrine. Acknowledging years of past adherence to the Modified Common Enemy Doctrine, the Missouri court notes: “At the time this case was tried, Missouri followed the “modified common enemy doctrine” with respect to surface water…an upper landowner was protected from liability to a lower landowner for obstructing the flow of surface water, provided that: (1) the discharge flows into a "natural drainway channel” located on his property "where the surface water from the drained areas would naturally go ... even though in doing so they [the upper landowner] might increase and accelerate the flow of surface water in its natural channel onto the lands of the plaintiff,”…and (2) the upper owner “acts without negligence and does not exceed the natural capacity of the natural drainway to the damage of the neighbor.”...In 1993 our Missouri Supreme Court replaced the modified common enemy doctrine with the “rule of reasonable use.” This decision appears to have been due to growing complexity of relevant rulings, and on the many corollaries prior courts had been forced by circumstance to develop. Ultimately, the court must balance the rights of individual landowners with the rights of both the adjoining owners and of the general public.

Kueffer v. Brown describes the specific elements relevant to application of the Reasonable Use Doctrine: “In adopting this doctrine the supreme court held that surface water rights and liabilities were not exclusively property law questions, but were also to be analyzed as a form of nuisance … the elements of the rule of reasonable use are: each possessor is legally privileged to make a reasonable use of his land, even though the flow of surface waters is altered thereby and causes some harm to others, but incurs liability when his harmful interference with the flow of surface waters is unreasonable. Reasonableness is a question of fact, to be determined in each case by weighing the gravity of the harm to the plaintiff against the utility of the defendant's conduct. Liability arises when the defendant's conduct is either (1) intentional and unreasonable; or (2) negligent, reckless, or in the course of an abnormally dangerous activity.”

This ruling was remarkable in at least two respects. It overturned a doctrine that had been recognized in Missouri since the 1880’s. In addition, this decision expanded the doctrine beyond the application to surface flow because it dealt primarily with flood control measures along the Missouri River. This opinion was sufficiently contentious to spark a lengthy article in the Missouri Law Review: 66 Mo. L. Rev. 469 Blake J. Pryor (Spring, 2001)

Other states that have transitioned entirely to the Reasonable Use Rule include West Virginia (Morris v. Priddy: 181 W. Va. 588 (1989)) and North Carolina (Pendergrast v. Aiken: 293 N.C. 201 (1977))

Nature of the Waters

An additional problem occurs when attempting to determine the category of water flow under consideration. Mogle v. Moore: 16 Cal. 2d 1 (1940) breaks down the passage of water into three categories; surface waters, streams, and floodwaters: “Surface waters are defined as waters falling upon and naturally spreading over lands.  They may come from seasonal rains, melting snows, swamps or springs, or from all of them… A stream is a watercourse having a source and terminus, banks and channel, through which waters flow, at least periodically.  Streams usually empty into other streams, lakes, or the ocean, but a stream does not lose its character as a watercourse even though it may break up and disappear…Flood waters are distinguished from surface waters by the fact that the former have broken away from a stream, while the latter have not yet become part of a watercourse.”

These definitions were a necessity given the confusing situation confronting the court. Surface flow water was concentrated into a creek bed and then left the creek to become floodwaters on the land of Moore. In response to this problem, Moore dug a ditch and constructed a barricade that diverted the water onto the lands of Mogle. The barricade constructed by Moore was made of wooden posts connected with interwoven barb-wire. Apparently branches and other debris became entangled in this fence and served to divert later overflows.

This situation was made more convoluted because the original flow of water had been artificially modified at several points along its course. Not only was the creek completely dry for part of the year due to the dams constructed upstream, but the drainage at issue was overflow water that was diverted from the natural stream bed into Comet Avenue (an undeveloped street).

In this instance, the court held that the overflow constituted “flood water” since it had previously drained through a recognizable creek bed with defined banks and channel. As a result, the Moore family was justified in diverting the water away from their land. However, both the dissenting opinion recorded with this ruling and subsequent California decisions emphasize the difficulties faced by the courts in these situations. Land use professionals will play a vital role in determining the origins and characteristics of the flow of water from the source to the dispute locus.

McGlashan v. Spade Rockledge Terrace: 402 N.E.2d 1196 (1980) is an Ohio ruling that summarizes the difficulties faced by the courts when dealing with damages caused by water diversion or concentration. “As is apparent from the foregoing, the present state of the law in Ohio regarding surface water rights is decidedly un-clear.  In this respect we are not alone.  Courts in other states have also experienced difficulty in applying these inflexible doctrines to varying circumstances. The result has been a trend toward adoption of a reasonable-use approach based on tort liability rather than property rights.  Forty years ago, a landmark article on this subject succinctly posed the dilemma and proposed the following solution:“...‘The question presented in such cases is not so much one of law as of fact.  It would doubtless be convenient if it could always be answered by citing a stereotyped definition of legal right.  But as the situation of all adjoining owners of land is not the same, and as the circumstances attending the use of land in view of the flow of surface water are infinitely various, the failure to attain substantial justice by the enforcement in all cases of a rule of law which does not recognize these important differences is not surprising.  The result is that the question of the reasonableness of the use in a given case must be determined as a question of fact under all the attendant circumstances.’”

These examples also demonstrate an opportunity for the surveyor to enter the picture in these disputes. It is clear that a detailed analysis of the physical features on the surrounding properties may be required before the courts can come to a proper conclusion.

Individual State Statutes

Indiana state law provides a vivid example of how statutory requirements may play a major role in the control of surface water. “Legal Drains” are the subject of major portions of Title 36 Article 9, Chapter 27, along with Mutual Drains, Private Drains, Regulated Drains, Rural Drains, and Tiled Drains. In addition, 36-9-27-33 specifies a right of entry for county surveyors on a strip of land lying within 75 feet of any regulated drain. By necessity, this is only a cursory view of Chapter 27 as it includes more than 100 individual subsections.

The significance of these statutory requirements is illustrated in the frequency of related litigation in Indiana. Attempts to determine legislative intent of the various regulations are common, as are suits involving tax assessments or perceived damages associated with legal drains. Rulings have also considered the legitimacy of a natural watercourse as a legal drain.