Posted on Jan 27, 2016 by TURNER PADGET LITIGATION TEAM
Almost any change that people make to the natural landscape can alter the flow of surface water, and that often creates problems that grow into legal disputes. It’s an area where property rights, nature and engineering intersect in unpredictable ways.
A new subdivision, parking lot, expansion of a building or even change in the use of rural land can result in water washing out a neighbor’s lawn, flooding homes, attracting mosquitos in standing pools, depositing silt on a golf course, polluting a backyard pond or rendering crop land less profitable. While we typically see these problems emerge in urban developments, disputes can arise anywhere water flows.
The problem almost always centers on how construction diverted the previous, natural flow of surface water after rainfall and the disagreement usually is over whether the new path of the water really is creating a problem.
Was the water artificially diverted?
In South Carolina, water law follows what is known as the “common enemy doctrine.” Under this legal theory, landowners can dispose of surface water (everyone’s common enemy) any way they see fit, providing that it doesn’t create a nuisance for a neighboring landowner, and that it isn’t collected by an artificial means and disposed of in a concentrated form on a neighbor’s property.
“Artificial” is the first key element in water law. You can’t complain successfully if your land is flooded because a hurricane uprooted trees on your neighbor’s property or if the problem was created by the natural topography.
The most important case in South Carolina water law came in a 2004 state Supreme Court ruling in Lucas v. Rawl Family Ltd.
The case was filed by a farmer who grew Bermuda grass. A new owner of adjacent property situated at a higher elevation cleared 40 acres for farming. That resulted in extensive flooding of the lower land after heavy rains, with silt washing over the Bermuda grass crop and rendering it less profitable.
Is the water a nuisance under the law?
It fell to the South Carolina Supreme Court to define “nuisance” in this case. The court said that a nuisance, per se, is water that is “dangerous at all times and under all circumstances to life, health, or property.” With that guidance, it was up to a jury to decide if the water damage actually was a nuisance.
In several other cases, the Supreme Court has ruled that a jury gets to decide if excess water is creating a nuisance under the law. As you can imagine, that’s often a very subjective question for a jury. Water that washes away a home is easily a nuisance, but what about a lawn that floods once a year?
These cases can get expensive because they typically pit one set of engineering and damage valuation experts against another. Litigation also can drag on because once a development has been built, modifications may be more expensive and a builder then has greater incentive to resist a settlement.
Be proactive in water disputes
If there is a new development under construction, take a look at the plans, and talk with planning and code authorities. Your involvement may prompt them to double down on their review of how the development will handle water flowing from the site. Although you are unlikely to sue successfully over the probability of a problem occurring, it’s much less expensive to modify plans while they’re still on the drawing board, and a developer will be more willing to negotiate concessions at this stage. And while a deep-pocket developer may feel confident litigating against a homeowners’ association or a single landowner, it’s risky to ignore the concerns of planning officials who can hold up approval of a project.
Be proactive at the first sign of a water problem, and you will stand a better chance of avoiding expensive litigation and arriving at a consensus solution.