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Dealing with Water Drainage Issues: Liability and Immunity

Water drainage problems are a common headache for many property owners.  Oftentimes, a landowner’s rights to improve their own land may come at the expense of a neighboring property owner.  If someone else has caused water to flood or improperly drain on your property, you may have a right to seek legal action.  On the other hand, many property owners are protected by the common enemy doctrine.

Common Enemy Doctrine

Essentially, the common enemy doctrine states that surface water (temporary excess water from rainfall or snowfall) is a common problem – a common “enemy” – to all property owners.  Therefore, each property owner has the right to deal with it in his or her own way and is not responsible for how the water affects neighboring land.  For example, a property owner may change the grade of his land or affect the absorption of the water on his land.  Even if this water then runs onto his neighbor’s land and causes damage, he or she is protected by the common enemy doctrine.1

There is, however, an exclusion to this harsh rule:  A property owner may not collect and/or concentrate water and cast it onto neighboring property at a certain spot or spots, such as through an open drainage pipe or defined channel.

While this doctrine allows property owners to both freely improve their land and deal with their own water issues, it can also block those who are harmed from seeking legal remedies.  The Court recently reaffirmed the common enemy doctrine, holding that despite damage done to one party’s land, the neighboring party had no liability.2

Case in Point

The Youngs built a new home on their lakefront property, which is uphill from the neighboring land owned by the N.G. Hatton Trust.2  When the Youngs built the new house, they also raised the ground by several feet.  Ever since the Youngs’ house was built, water flows down to the Trust’s property during heavy rains.  The Trust brought a lawsuit against the Youngs for negligence, stating that the water causes damage to its concrete sidewalk and stairs, and washes rocks, mud and sediment onto its property.2

The Court found that although the water from the Youngs property caused damage to the Trust’s property, the Youngs were protected by the common enemy doctrine.  The Court relied on the fact that the water only flowed after heavy rain or snowfall, which was temporary, and that the Youngs did not collect water and cast it onto the Trust’s property in concentrated quantities.

The Trust also argued that the common enemy doctrine did not apply because the water carried with it rocks, mud and sediment, and was therefore distinguishable from the intent of the doctrine.  However, this was an issue for a jury to decide, and the jury determined that the common enemy doctrine still applied.  The Court of Appeals upheld the jury’s decision.

 

Although water drainage from one property causes damage to an adjacent landowner’s property, the owner of the damaged property does not always have recourse.  Every situation is different, and the specific facts of the case determine whether a person is entitled to a legal remedy.  The lawyers at Kahn, Dees, Donovan & Kahn, LLP, represent both landowners whose properties are damaged by improper water drainage, as well as landowners who are defending against such a claim.  Please contact attorney Mallory C. Deckard at mdeckard@KDDK.com or (812) 423-3183, or contact any member of the KDDK team for more information and to schedule a consultation.

 

 

1Pflum v. Wayne Cnty. Bd. Of Comm’rs, 892 N.E.2d 233, 237 (Ind. Ct. App. 2008)

2N.G. Hatton Trust v. Robert D. Young and Ellen M. Young, 92A03-1708-PL-1818

About the Author

Mallory Deckard represents individuals, businesses and other clients with consistency and confidence. An even-keeled litigator and proactive counselor, she primarily practices insurance, personal injury, medical malpractice, family, creditors’ rights and bankruptcy, and debt collection law. A native of Avon, Indiana, Mallory practiced personal injury law and medical malpractice law at firms in Indianapolis and Evansville before joining the KDDK team.

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