My area of Connecticut (about 50 miles north of NYC) experienced far above-average rainfall amounts in 2018. Thus far this winter, we have had almost no snow, excepting one storm (in November), and a lot of rain.
One result is standing water where it usually isn’t – ponds and mini-lakes in yards where they weren’t before. And since runoff water has fewer places to go, I have heard from a few clients about surface water runoff they believe is caused by a neighbor (or from the neighbor responding to these issues).
They want to know whether the neighbor can be required to prevent runoff, or at least stop something they are doing to cause or exacerbate. They also want to know whether they are entitled to damages for the cost of fixing damage caused by runoff.
The first question is whether a water runoff situation involves “surface water” between private landowners. “Surface water” by definition accumulates naturally, i.e. precipitation and has not yet settled or absorbed. Once water settles into a pond, lake, or other body of water or is absorbed into the ground, it is no longer “surface water.” Man-made accumulations (e.g., pools, ponds, etc.) are likewise not surface water.
With respect to surface water, Connecticut courts have rejected a severe rule known as the “common enemy doctrine.” A 1980 Supreme Court ruling described this rule as creating a “privilege” to “repel surface waters, even though this might increase the burden upon another.” Connecticut instead follows a more flexible, rule of “reasonable use”: a landowner, “in dealing with surface water, is entitled to take only such steps as are reasonable, in light of all the circumstances of relative advantage to the actor and disadvantage to the adjoining landowners, as well as social utility.”
Digested, this means the property owner diverting surface water is not privileged as with the common enemy rule, but still will generally not be held liable for damages as long as the steps taken were “reasonable.” Further, a property owner “may not use or improve his land in such a way as to increase the total volume of surface water which flows from it to adjacent property, or as to discharge it or any part of it upon such property in a manner different in volume or course from its natural flow, to the substantial damage of the owner of that property.”
As with similar “rule of reason” formulations in the law, the obvious question is, “what’s reasonable?” Very often this can be addressed with a visceral way: If you have to ask, it’s probably not “reasonable.” In a court’s view, reasonableness accounts for the amount of harm caused, its foreseeability, the purposes of motive of the property owner, and the benefits and harms caused. Getting to the bottom of these issues can complicate a surface water dispute. Litigation is frequently an option but is also frequently not recommended given the costs involved. A good lawyer may be able to negotiate and help expeditiously rectify a surface water problem.
This content is provided as background and does not constitute legal advice. For more information or to schedule a free consultation, contact us at info@lalorattorneys.com / 646.818.9870.
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