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Help, They Flooded My Property!

Neighbor & Nuisance Disputes by Simon Offord, Esq.

In previous articles I have examined some of the many situations in which disputes can arise between neighbors.  This article discusses yet another area where neighbor disputes can commonly arise: surface water.  Water can cause great damage to a homeowner’s property, so it is no surprise that there is a substantial body of law dealing with disputes arising because of the discharge of water over the land of another.

Surface water is exactly what it sounds to be, water that flows above the ground.  Generally, it causes a dispute only when one landowner changes the natural flow of surface water to the detriment of another landowner.  For example, if a landowner in Palo Alto grades his property as part of construction of his or her home, and that grading changes the natural flow of water to the downhill homeowner’s detriment, a dispute is likely to arise.

The rule in California used to be very restrictive.  Specifically, the rule used to be that a person may not interfere with the natural flow of surface water in such a manner to cause an invasion of another’s use and enjoyment of their land.  However, California has since changed the rule, as the old rule discouraged improvement of land, since virtually any use of a property is likely to cause a change in drainage.  Thus, California has adopted the rule of “reasonable use” for determining the rights and liabilities of adjoining landowners with respect to the flow of surface water.

The rule of reasonable use looks at all relevant factors in determining if there is any liability by the landowner who has changed the flow of water.  Thus, the trier of fact must look at both the conduct of the “upper owner” (or the owner changing the flow), as well as the conduct of the “lower owner” (or the affected owner).

Thus, the trier of fact will look at whether harm was foreseeable, the upper owner’s purpose or motive, the utility or need for the upper owner’s actions, and the amount of harm caused.  The trier of fact must also consider what actions the lower owner took to minimize the harm, whether the precautions they took were reasonable, and the extent of the injury or potential injury.

After looking at all these factors, the trier of fact must determine whether each side was reasonable.  Then, the rule of reasonable use is applied.

The rule of reasonable use has been summarized as follows:

1. If the upper owner is reasonable and the lower owner unreasonable, the upper owner wins;

2. If the upper owner is unreasonable and the lower owner reasonable, the lower owner wins; and

3. If both the upper and lower owner are reasonable, the lower owner wins.

As can be assumed, the determination of the above is very fact specific and depends on numerous factors.  At Brewer Offord & Pedersen LLP, we can assist you in analyzing the facts of your specific situation to help avoid a dispute concerning surface water, or to resolve an existing dispute.  If you are involved in a dispute over surface water, or if you have any other questions about real estate legal issues, contact Brewer Offord & Pedersen LLP at (650) 327-2900, or on the web at

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