My Neighbor is Flooding My Property! What Can I Do?
Your uphill neighbor has a large backyard. Until last month, it was all grass. But he just finished a huge new concrete patio. So where does all the rainwater flow now? Turns out he’s installed drains in the patio, and the water empties onto your boundary line. Then it flows straight downhill, pooling near your house. It’s rained heavily the past week. Happily, you avoided the nasty weather with a week in Phoenix. Unhappily, you arrived home to six inches of standing water, soaked drywall, and ruined belongings.
At first glance, Washington law seems to favor your neighbor. The “Common Enemy Doctrine” is the general rule established by Washington’s Supreme Court:
[T]he common enemy doctrine allows landowners to dispose of unwanted surface water in any way they see fit, without liability for resulting damage to one’s neighbor. The idea is that surface water is regarded as an outlaw and a common enemy against which anyone may defend himself, even though by so doing injury may result to others. Currens v. Sleek, 138 Wn.2d 858, 861, 983 P.2d 626 (1999) (citations omitted).
But Washington courts also established three exceptions to the Common Enemy Doctrine:
- Inhibiting Water:
[A]lthough landowners may block the flow of diffuse surface water onto their land, they may not inhibit the flow of a watercourse or natural drainway. Under this exception, a landowner who dams up a stream, gully, or drainway will not be shielded from liability under the common enemy doctrine. A natural drainway must be kept open to carry water into streams and lakes, and a lower proprietor cannot obstruct surface water when it is running in a natural drainage channel or depression. Currens, 138 Wn.2d at 862 (citations omitted).
- Collecting and Channeling Water:
Surface waters may not be artificially collected and discharged upon adjoining lands in quantities greater than or in a manner different from the natural flow thereof. This rule prohibits a landowner from creating an unnatural conduit, but allows him or her to direct diffuse surface waters into preexisting natural waterways and drainways. Currens, 138 Wn.2d at 862 (citations omitted).
- Failure to Exercise Due Care:
[L]andowners who alter the flow of surface water on their property must exercise their rights with due care by acting in good faith and by avoiding unnecessary damage to the property of others. Currens, 138 Wn.2d at 865.
As a practical matter, especially in the modern urban and suburban setting, these three exceptions are often more applicable than the Common Enemy Doctrine itself. If your neighbor – or the city, county, or state – has damaged your property through the redirection of surface water, you might have a claim. The lawyers at Beresford Booth have extensive experience litigating the Common Enemy Doctrine. Please call us with any questions.
To learn more about Washington’s Common Enemy Doctrine, please contact Beresford Booth at info@beresfordlaw.com or by phone at (425) 776-4100.