Has A Neighbor Changed the Flow of Storm Water Onto Your Property? Know Your Rights!

by John Chapman

Sometimes a neighbor makes changes to their property—perhaps a new structure or landscaping—that alter the flow of storm water draining off your neighbor’s property. When a neighbor causes water damage to your property as a result of changing the natural flow of surface water, Texas law provides you with important rights.

It is the settled rule in Texas that a landowner has no right to change the course of escaping surface water to the detriment of adjacent property. Specifically, Texas Water Code § 11.086, entitled “OVERFLOW CAUSED BY DIVERSION OF WATER”, includes the following:

(a) No person may divert or impound the natural flow of surface waters in this state, or permit a diversion or impounding by him to continue, in a manner that damages the property of another by the overflow of the water diverted or impounded.

(b) A person whose property is injured by an overflow of water caused by an unlawful diversion or impounding has remedies at law and in equity and may recover damages occasioned by the overflow. […]

For purposes of the statute, the term “surface water” means water that is diffused over the ground from falling rains or melting snows and continues to be such until it reaches some bed or channel in which water is accustomed to flow. A landowner is entitled to rely upon continuation of the natural flow of “surface water.” Legal problems can arise when a landowner interferes with the natural flow of drainage water by capturing and holding the flow or by diverting or increasing it.

When rainfall that is under control by ditches, tanks, ponds, or pipes is no longer considered “surface water,” for purposes of the statute. So-called “surface water” does not follow a defined course or channel and does not gather into or form a natural body of water. However, “surface water,” is not limited to water “untouched by the hands of man,” and thus, recovery is not precluded simply because the surface water fell on an “artificial environment.”

The statute is concerned only with the “natural flow” of surface waters. Thus, the owner of a higher property is entitled to have surface waters pass along to a lower property so long as the waters follow their usual courses and flow in their natural quantities. The higher property cannot increase the burden on the lower property by diverting or impounding the natural flow.

On the other hand, if the owner of the low land obstructs or repels the natural flow of such waters, then that owner can be held responsible for any injury that results from his action.

The statute does not interfere with the right of a landowner to drain his or her land into natural drainways where the tendency of the water is naturally to drain toward that drainway. Of course, owners must act in a reasonable manner.

Under section 11.086, an owner whose property is injured by an overflow of water caused by an unlawful diversion or impounding of surface water by this neighbor may recover damages occasioned by the overflow. In addition, the injured property owner may also be entitled to injunctive relief—such as, for example, a court order requiring the neighbor “undo” the changes to the flow of surface water.

If you have questions about whether a neighbor may have injured your property in violation of the law, in Texas or wherever your property is located, contact the lawyers at Heygood, Orr & Pearson by calling toll-free at 1-877-446-9001, or by filling out our free online case evaluation form located on this page.

by John Chapman

John Chapman is a licensed attorney with experience in complex commercial litigation (including securities fraud, RICO, shareholder oppression, and derivative actions) and personal injury litigation.