Surface Water Diversion and Flooding Issues Attorneys
Water can cause substantial damage to houses, buildings, and land from erosion of foundations, flooding of structures, and general intrusion of unnatural amounts of water from an adjacent or adjoining property. Virginia has created a body of law to protect property owners from unnatural surface water diversions coming from neighboring properties.
Surface waters may come from a variety of sources, such as rain water, melting snow, or storm water runoff. The general rule regarding surface water is commonsensical and provides that the owner of the property on which the standing water sits has complete and exclusive rights to use it. Problems may arise, however, when the standing water is harmful to the land due to flooding or otherwise interfering with the owner’s use and enjoyment of the land. When this happens, the property owner typically wishes to divert or redirect water, through the use of dikes, dams, or the like, and to channel it elsewhere.
As a general rule, a neighbor is not liable for harm caused by the natural conditions of the land. If the land lies in such a way that causes a particular amount of water to be dumped onto land from rain running from a neighbor’s property, it is not typically your neighbor’s fault. However, problems develop when the neighbor landscapes his property in such a way that the amount of rain water running onto your property is significantly greater.
With this in mind, you may find a neighbor making changes or improvements to their land – perhaps new landscaping or a new structure – that alters the flow of storm water and funnels it onto your property. This diversion may cause storm water runoff and harm your property by eroding a foundation, flooding a basement, collapsing retaining walls, or submerging your gardens.
When examining disputes regarding surface water, Virginia applies a simple rule that views surface water as a common enemy. Landowners may fight it off as best as they can, provided they do so “reasonably and in good faith and not wantonly, unnecessarily or carelessly.” Mullins v. Greer, 311 S.E.2d 110, 112 (Va. 1984). That means that Virginia landowners are permitted to take steps to divert water from their property, but they must do so in a manner that does not harm their neighbors. Because of that, Virginia law does provide certain well-defined applications of the rule announced by the Mullins v. Greer court.
In addition, a neighbor who diverts water in an unreasonable manner may be liable for common law trespass. Virginia law recognizes that a trespass is “an unauthorized entry onto property which results in interference with the property owner’s possessory interest,” and any “physical entry upon the surface of the land constitutes such an invasion, whether the entry is a walking upon it, flooding it with water, casting objects upon it, or otherwise.” Kurpiel v. Hicks, (2012) (quoting Cooper v. Horn, 248 Va. 117, 423, 448 S.E.2d 403, 406 (1994))
If a neighbor is legally responsible for water damage to your property, you may be able to recover financial compensation for any or all of the following:
- Compensation for cost of repairs and replacements;
- Compensation for expenses such as having to stay at a hotel;
- Reimbursement for medical expenses;
- Compensation for mental distress, if you have suffered an underlying physical injury; or
- Punitive damages, if a neighbor acted maliciously.
If your neighbor has unreasonably or wrongfully diverted the natural flow of surface water onto your property, the Water Diversion Attorneys at MartinWren, P.C. can help. Please contact John B. Simpson or Robert E. Byrne, Jr. at (434) 817-3100 for more information about these types of matters.