Do you have a legal claim if your neighbor diverts water onto your property and it damages your property?
Depending on the facts of your case, you may indeed have an actionable claim against your neighbor.
When we think of the civil tort of trespass, we generally envision someone entering onto property or refusing to leave. We don’t often think about drainage and flooding. But if you are experiencing drainage issues or water being diverted onto your property, the tort you should be thinking of is trespass.
Because when someone interferes with, or damages another’s interest in property, either by entering onto it, or by causing something else to enter the land, it is considered a civil trespass.
That includes causing water to flow onto your property.
What this means then, is that if your neighbor does something to divert water onto your property —like altering the natural flow of water from his property —and that causes water to flow onto your property, it can constitute a trespass. Similarly, if your neighbor fails to do something —like not maintaining his drainage so that water collects in the system and then discharges onto your property – that can also constitute a trespass.
Drainage and flooding issues involving real property can also give rise to other civil claims as well.
They can, for example, constitute a civil nuisance.
To meet the legal definition of nuisance, the act (or acts or inaction) must meet several specific criteria. Ultimately, however, whether or not an act constitutes a legal nuisance is a question for the jury to decide. Nevertheless, there have been a number of cases which have found that the flooding of downstream property caused by an upstream owner constitutes a nuisance for which damages are recoverable.
Whether you have a cause of action for trespass or nuisance, or other something else altogether, depends on the facts of your case and the analysis of experienced counsel.
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