Water Drain Changes With No Notice

Water Drain Changes With No Notice

QUESTION:


Can a landowner make changes to his land so water drains towards a neighboring property and then rent part of that land to cars and other polluters without installing storm drains or other provisions to keep pollution off the neighboring land?

ANSWER:


In Massachusetts, Reasonable Use Doctrine allows landowners to make reasonable use of their land, even in cases where they change the flow of surface water in a way that causes harm to others, including other landowners. At the same time, if the interference involving surface water is not only harmful but also unreasonable, the landowner may be held liable.

What is reasonable?

The problem for neighbors engaged in this type of dispute is that two landowners may have different definitions of the word “reasonable.” One landowner might think it is perfectly acceptable to change a waterproof street that is arched in the middle and cause water to flows towards another property. That same landowner might think it’s reasonable to put parking meters on the property or to rent the property as parking spaces to others — allowing not only water runoff but also runoff including oil and road sand to reach neighboring land. The owners of nearby properties might disagree and may want the landowner to install a curbstone or make arrangements to keep their own properties safe.

In legal terms, “unreasonable” is a changing and elastic idea. To determine whether an alteration of a property is truly unreasonable, an element of fact is needed. For example, if you can establish that a neighbor’s actions are causing hazardous waste to leak onto your property, you may be able to claim that the neighbor’s actions are unreasonable.

Is the action negligent?

In these types of cases, the idea of negligence also comes into play. To demonstrate that your neighbor was negligent, you will need to show that there was:

  1. A duty owed by the neighbor to you;
  2. A breach of this duty;
  3. Harm or damage (directly and proximately) caused by the breach of duty
  4. You suffered damages (a calculable loss) as a result of the breach of duty

Do I have a private nuisance claim?

In some cases involving drainage of surface water, landowners may be able to make a claim of private nuisance. A landowner might be held liable on a private nuisance claim if their actions cause another landowner to lose use and enjoyment of their own property. One legal case, Murphy v. Chatham, 41 Mass.App.Ct. 821, 676 N.E.2d 473 (1996), found that a “Town’s negligent failure to unblock culvert resulting in flooding of landowner’s land is a private nuisance for which the town can be sued.”

There may be a claim in your case, but each case is unique and may be affected by different factors. The best way to determine whether you have a claim is to contact a real estate attorney to get a personalized evaluation of your situation. Contact Calabrese Law today for help with your case.

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