By Joseph G. Ballstaedt
801-365-1021
joe@snjlegal.com
If water from your neighbor’s property is flooding into and damaging your property, what can you do? Who is responsible? What laws apply? This article discusses different rules that govern surface water intrusions and disputes between neighbors, including the reasonable use rule, the rule Utah courts appear to have adopted.
What Different Surface Water Rules Exist?
There are at least three different rules that govern the alteration and intrusion of surface waters from neighbors. Each is briefly discussed below.
1. Reasonable Use Rule. Spoiler alert. This is the rule that Utah courts appear to have adopted. Under this rule, each owner of land can make a “reasonable use of his land,” even if doing so changes the flow of surface water and causes harm to others. But this use must be reasonable. The reasonable use rule does not allow a landowner to cause “harmful interference with the flow of surface waters” because that would be unreasonable. The rationale behind this rule is that an unjustified (or unreasonable) invasion of water into another’s property impacts that owner’s use and enjoyment of land, and it is a “tort” just like a trespass or nuisance created by smoke or undesirable smells. To determine what might be reasonable use, a court in Utah might consider how important the alteration was, whether the increased water and runoff was reasonably foreseeable when the alteration creating the change occurred, and how much value the alteration adds in comparison to the damage.
This reasonable use standard is by no means precise and leaves plenty of room for interpretation, differences of opinion, and litigation. But it’s the rule that we seem to have in Utah (as explained in more depth below), and it may be better than the alternatives.
2. Common Enemy Rule. This rule comes from the English common law (which is the law of the courts of England). It states that flooding is a common enemy, and people can take necessary (perhaps even unreasonable) measures to protect themselves and their property, regardless of the harm this conduct might cause others. Stated otherwise, if people take action to protect themselves and their property from the enemy of water, they are not responsible for how those actions harm others. So a landowner can build
dikes, walls, drainage ditches, and other structures, and if doing so causes more surface water to run into a neighbor’s land, that neighbor is expected to deal with it. It doesn’t matter if the neighbor causes more damage than normally and naturally occurs. This rule appears to value each person’s right to take action to preserve and protect property, even at the expense of others.
3. Civil Law Rule. This rule, also known as the “natural flow rule,” prevents any landowner from changing land in a way that alters or diverts water in a way that would harm a neighboring owner. If a landowner changes the water flow, it is responsible for any damage to neighbors. States often adopt a version of the civil law rule by legislation that allows for some reasonable use.
What is the Rule in Utah?
Utah courts seemed to embrace the common enemy rule in 1957. Utah courts seemed to use the civil law rule as early as 1966. And in 1971, Utah courts showed clear support for the reasonable use rule. There do not appear to be any Utah statutes dealing with surface waters between neighbors. Admittedly, Utah laws are not as clear and helpful as they could be, so the 1971 decision is likely the most relevant.
Help With Surface Water Issues
Each water dispute and issue is different. Many water-related disputes are quite complex. Each may or may not trigger different common law, statutory, or regulatory laws, both state and federal. For that reason, it is important to find an attorney who has expertise in the particular type of water law issue at hand. If you are involved with a surface water dispute with a neighbor or if you have another water-related issue, I am happy to talk and discuss your options and how I might be able to help. I offer a free consultation. My direct dial is 801-365-1021, and you can e-mail me at joe@snjlegal.com.
