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Gaines Drago
Gaines Drago
Contributor •

Water Rights

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You’ve finally retired and have purchased that dream plot of forty acres. You know the one just outside of town, with open spaces where grandkids can come and explore, where the only honking you hear is from the Canadian Geese who have come to spend the winter in a nearby pond. When alas, in this world of imperfection, you are taking a tour of the property with your son to show him what hard work and dedication can bring when suddenly you begin to notice the land becoming far too saturated, swampy almost. This wasn’t what you remember when you toured the land meticulously studying every detail. You continue to walk through the now swampier terrain, until you begin to see the reason for your dream’s demise. Ahead nearly, 500 yards you can see the bulldozers, backhoes, and other signs of “progress and development” recasting the design of the lake, which they now own, and now houses no geese. Which of course is ironic since you later learn the neighborhood is going to be called Geese Landing. The new redesigning of the lake is to add a tremendous amount of value to the area, but could divert some water flow onto your property. However, after speaking with the engineers and contractors on the Geese Landing project you learn they believe that this is just the natural flow of water and that they have not done anything detrimental to your property. What do you do? Or what can you do?

Water rights can be tricky issues, especially for those of us living in areas that are often flooded, or saturated with creeks, rivers, and bayous of all types. The constantly shifting landscape due to hurricanes and population redistribution has forced land owners and legal counselors to address water rights and property rights issues. Briefly, I will examine a couple of issues that you may face as a land owner or counsel to a land owner who feels his property has been damaged by unnatural water flow. Under a modified civil law rule land is legally subservient to the natural flowage of surface water and the lower landowner may not disrupt the flow of such water to the upper owner’s detriment or vice versa. But, because of the artificial conditions created by the building of cities and the improvement of city lots, the civil law rule should not apply in cities. The common enemy rule, which applies to incorporated areas, is to the effect that surface water is regarded as a common enemy, and every landowner has the right, as a general rule, to take any measures necessary for the protection of his own property. However, an upper owner has no right to collect the surface water in a channel and cast it on a lower owner’s land even in a city or town. Mountain Brook v. Beatty, 292 Ala. 398, 404 (Ala. 1979). Although it is clear that diffuse surface water may not be collected in a channel and cast on complainants’ land, it is equally clear that water may be channeled into a naturally occurring water course flowing through a lower owner’s land even though it could not be cast directly on his land. In other words, the upstream owner] may be able to collect and discharge diffused surface waters into a water course, but with limitations. He may not be permitted to overtax the capacity of the water course or drainage channel. Id. There is a well known equitable principle in the state, which prevents an upper proprietor from casting rain water deposited upon his lot upon the premises of the lower proprietor in greater volume and greater rapidity and in a channel to his damage, whereas such water would naturally spread out over a wide surface and pass off without injury. Such owner has no right to so grade his land or to so erect embankments as to thus turn the natural flow of the surface water, nor can he gather this surface water into a body on his own land, and then discharge it in a body, when without being so collected and discharged it would have been scattered and diffused over greater territory. The better or at least the more general rule seems to be that the natural drains must be kept open, and that the lower estate is subject to the servitude of receiving the water through its accustomed and natural channels. There is an exception or a limitation to the rule that it does not apply to city or village lots, property for which artificial drainage has been obtained, or which, from necessity, must be so drained. Kay-Noojin Development Co. v. Hackett, 253 Ala. 588, 590 (Ala. 1950).

In the end, the landowner whose property has been damaged should be able to maintain a cause of action against the damaging party. This is particularly true if the damaging party changed the landscape and grade of his property so as to restrict or change the natural flow of water. However, there are two exceptions; one, if the damaging party is located within incorporated limits and the water must be drained by artificial means for purposes of necessity (hygiene and safety) than there is little that the damaged party will be able to do to alleviate the problem; and two, if the damaging party simply diverts the water to its natural flow. Good luck to all getting their forty acres and spot of paradise.