Mathis and Barnes own adjoining property in rural Anderson County, Texas. Lake Creek runs through the two properties. For some time, Mathis had sought to cultivate “pristine wetlands” on the portion of his property close to Barnes’s property. Due to multiple beaver dams on Mathis’s property, the property became a watering, nesting, and roosting place for waterfowl.
Then, in mid to late 2006, Barnes constructed an earthen road on his property. The road, in effect, served as a dam where it crossed Lake Creek. By October of 2006, Lake Creek’s water flow increased and water began to rise on Barnes’s property upstream of the road. By November, the water had crossed the property line between Mathis’s and Barnes’s properties.
As time passed, the water continued to rise. By mid December, the water was several feet high at the fence line and had begun to crest at some of the beaver dams. In mid to late December, the road gave way to the waters of Lake Creek. The waters retreated from Mathis’s property revealing the remnants of many of the beaver dams that did not survive. As a result of the destruction of the beaver dams, the property retains a significantly smaller amount of water than it once did. Furthermore, the duck sightings on or above the property have been greatly reduced.
Mathis filed a water damage lawsuit alleging that Barnes was liable to him for nuisance, trespass, negligence, and gross negligence. A jury ultimately found that Barnes had not been negligent and did not cause a nuisance. The jury verdict has now been affirmed by the court of appeals. See Mathis v. Barnes, No. 12–08–00340–CV (Tex.App.–Tyler August 15, 2012).
Since 1915, Texas law has provided that, as stated in the current version of the statute, “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.” Texas Water Code § 11.086.
However, Mathis apparently did not ask the jury whether Barnes had violated section 11.086, the Surface Water Law. Given the facts—it was essentially undisputed that Barnes’s road had caused additional water to encroach on Mathis’s land—it seems that a cause of action under the Texas Water Code might have been successful. Of course, even under a section 11.086 claim, a plaintiff has to prove not only that the flow of surface water has been altered but also that the change has caused damage to his property.
Section 11.086 only applies to “surface water.” Surface water is water that is defused 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. Surface waters do not follow a defined course or channel and do not gather or form a natural body of water. When rainfall is under control, either by ditches, tanks, ponds, or pipes, it is no longer considered surface water. By definition, surface waters are not flood waters. Flood waters are waters which overflow a water course but flow with the waters in that water course. On other hand, surface waters are waters from precipitation which migrate across land until they evaporate, are absorbed, or reach a water course.
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.