Go With the Flow
Common law and state statute often combine to determine how surface water may be diverted or redirected. Both vary significantly between states and there may be as many variations of these rules as there are states to apply them.
Typically, courts apply any of three well-established doctrines when dealing with water that flows over land without a recognizable channel. The modified common enemy doctrine, the modified civil law rule and the reasonable use doctrine may all come into play depending on the specific situation and the jurisdiction in which the case is heard. The South Carolina court recently concluded that all three have merit.1
The common enemy doctrine may be traced to early rulings in Massachusetts2 and New Jersey.3 These two opinions emphasized 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. This uncompromising attitude has been largely superseded in modern common law.
A recent Connecticut decision provides a summary of changes made to the original common enemy doctrine. Keller v. Town of Southbury4 confirms that this principle permits the owner of one tract to allow surface water to flow onto the adjoining parcel. However, this ruling also observes that the common enemy doctrine is modified by the reasonable use doctrine. This modification is considered beneficial because it increases the flexibility of the court when dealing with unique circumstances inherent in 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 may take only those reasonable steps that are dictated by the relevant surrounding circumstances. Issues considered can include the motives of the landowner, the cost of damages and whether damages were foreseeable.
A recent Maine decision adds the caveat that under this doctrine, the upper landowners may be held liable if they collect or concentrate surface waters into basins or drainage structures and then discharge the water over neighboring tracts–particularly tracts that would not have been the recipients of the naturally occurring surface flow.5
An early California ruling implies a “natural easement” in the relationship between two adjacent fields. This circumstance occurs 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.”6
This ruling 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 redirect water flow in a manner of variance with the natural drainage.
This is by no means a universal rule and Ogburn v. Connor recognizes several jurisdictions that did not follow the principles described above. In addition, this case observes that different concepts often apply depending on the character of the land and the location of the subject parcel. Courts are reluctant to enforce this principle when clear-cutting or extensive development significantly alters the original drainage patterns.
The California case discussed above appears to represent an example of the “modified civil law rule.” Iowa courts have developed a similar premise described as follows:
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.7
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.
Florida courts also recognize the civil law and common enemy doctrine as legitimate “property rules,” but this jurisdiction also emphasizes a difference between these two and the reasonable use doctrine. Although the reasonable use doctrine is often considered to be on an equal footing with the other two, this court considers it a more general principle that may be applied as a “tiebreaker” when neither of the other two principles seem to apply.8
A recent Missouri ruling describes a shift from the modified common enemy doctrine to the reasonable use doctrine. Acknowledging 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.”9
This decision appears to have been due to growing inconsistencies in the courts’ application of the many corollaries of the modified common enemy doctrine. Ultimately, the court must balance the rights of individual landowners with the rights of the adjoining owners and of the public.
Kueffer v. Brown then included specific elements for 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.10
This ruling was rather unusual in at least two respects. It overturned a doctrine that had been recognized in Missouri since the 1880s and 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.11
California courts recently described 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.12
Even the location of the tracts and their relationship to municipal boundary lines may affect the ways in which these principles are applied. In Holden v. Edwards Specialties13, 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.
An additional problem occurs when attempting to determine the type of water flow under consideration. Mogle v. Moore14 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.15
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 Moore’s land. In response to this problem, Moore dug a ditch and constructed a barricade that diverted the water onto the Mogle’s lands. Surprisingly, the barricade Moore constructed was made of wooden posts connected with interwoven barbed wire. Apparently branches and other debris became entangled in this fence and served to divert later overflows.
This situation was all the more tangled 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 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, the dissenting opinion recorded with this ruling and subsequent California rulings emphasize the difficulties faced by the courts in these situations. This ruling emphasizes the vital role that surveyors might have in a similar situation since the origins and characteristics of the flow of water must be determined over a large area.
An Ohio ruling 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.’”16
This opinion also provides an opportunity for the surveyor to enter the picture in litigation of this type. 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.
Indiana state statutes provide 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.
It’s easy to see the significance of these statutory requirements because they are reflected in litigation across the state. Attempts to determine legislative intent of the various regulations are common in Indiana, as are suits involving tax assessments or perceived damages associated with legal drains. Rulings have also dealt with the legitimacy of a natural watercourse as a legal drain.
While all of this information may be a bit “draining” on the reader, it serves to emphasize the complexity of issues that may surround that innocent-looking drainage ditch or culvert shown on your survey. With increased public scrutiny of many aspects of water use and control, the surveyor cannot afford to drift through this sea of confusion.
1. Lucas v. Rawl Family Ltd.: 359 S.C. 505; 598 S.E.2d 712 (2004)
2. Gannon v. Hargadon: 92 Mass. 106 (1865)
3. Town of Union v. Durkes: 38 N.J.L. 21 (1875)
4. Keller v. Town of Southbury: UWYCV086000950S (2010)
5. Harris v. The Woodlands Club: 2012 ME 117; 55 A.3d 449 (2012)
6. Ogburn v. Connor: 46 Cal. 346 (1873)
7. Greiner v. Wemer: No. 5-015 / 04-0380; Iowa App.
8. Westland Skating Center v. Machado Buick: 542 So. 2d 959 (1989)
9. Kueffer v. Brown: 879 S.W.2d 658 (1994)
10. Kueffer v. Brown: 879 S.W.2d 658 (1994)
11. 66 Mo. L. Rev. 469 Blake J. Pryor (Spring, 2001)
12. Skoumbas v. City of Orinda: 165 Cal. App. 4th 783; 81 Cal. Rptr. 3d 242; 2008
13. Holden v. Edwards Specialties: 62 So. 3d 1029; 2009
14. Mogle v. Moore: 16 Cal. 2d 1; 104 P.2d 785 (1940)
15. Mogle v. Moore: 16 Cal. 2d 1; 104 P.2d 785 (1940)
16. McGlashan v. Spade Rockledge Terrace: 62 Ohio St. 2d 55; 402 N.E.2d 1196 (1980)
Neither the author nor POB intend this column to be a source of legal advice for surveyors or their clients. The law can change over time and differs in important respects for different jurisdictions. If you have a specific legal problem, the best source of advice is an attorney admitted to the bar in your jurisdiction.