Q: “Dear Mr. Dolan, I read your article every week in The San Francisco Examiner. I do enjoy the information provided. I am not sure if my problem falls into your area of law. I live in the Midtown Terrace area of San Francisco. I have a water problem with my neighbor’s runoff onto my property. He diverted the natural flow of surface water across his property by building a trough along the fence, nowhere near his drain, which causes the runoff to go onto my property. My yard is constantly flooded with water even on sunny days. The water also runs from under the washer and dryer in my basement. My insurance agent at Allstate wrote numerous letters with suggestions, to no avail. He responded to one letter saying, ‘It is my responsibility to protect my property from natural rain.’”
A: Alberta, you are right, this is not an area within my scope of practice. But the real skill of a lawyer is to be a constant student, so I have used this opportunity to brush up on a tributary of the law regarding water rights and usage. Given the recent rain, this is a timely question.
The issue of water, who has the rights to it and who is responsible for it, is deeply embedded in California’s history as well as its law.
Starting with the general principle that water runs its own course, an owner of land upon which water falls is not responsible for the course that it naturally takes, even if it runs off that land and onto the land of another. When, however, that natural course is disturbed by the works or improvements of another, then the conduct of the upper property will be examined under the law to see if the owners are liable to the lower property holder.
The law that applies to this type of conflict is the law of nuisance. California Civil Code Section 3479 defines a nuisance as follows: “Anything which is injurious to health, including, but not limited to, the illegal sale of controlled substances, or is indecent or offensive to the senses, or an obstruction to the free use of property, so as to interfere with the comfortable enjoyment of life or property, or unlawfully obstructs the free passage or use, in the customary manner, of any navigable lake, or river, bay, stream, canal, or basin, or any public park, square, street, or highway, is a nuisance.”
A nuisance can be either a private or public nuisance. Your situation doesn’t affect the community as a whole, therefore it is a private nuisance.
Not surprisingly, there is quite a body of law regarding water in California. Indeed, there is an entire code section for water in California, but that mostly deals with who has the rights to water and how water will be managed. Several cases, however, have addressed what is almost the exact situation you face and illustrate how the law of nuisance might apply in your case.
A 1911 state Supreme Court case, Galbreath v. Hopkins, says: “While the owner of upper land has the right to have the waters from his land flow in their natural course down upon the lands below, he has no right, by the construction of ditches or other artificial means, to turn waters which have naturally accumulated in ponds or depressions on his land upon the land of his neighbor lower down ... where water is thereby caused to flow upon the land of another which would not naturally flow thereon, this is an invasion and injury to his right of property and a nuisance per se, the continuance of maintenance of which he has the right to have enjoined.”
Therefore, if the neighbor who is causing the water to be redirected damages your property, he may be liable to you for damages caused by the nuisance he creates. This includes damages to your property, whether that liability be to repair the property or for the reduction in value of your land.
Additionally, you can seek to have the conduct enjoined, which is where the court orders your neighbor to stop draining his lands onto your property.
Provide this to your neighbor and report what is happening to your insurance company. Ask your insurer if you have coverage against this kind of loss.
Many times, the insurer will state this is not a covered loss because it is from flood or water intrusion. I suggest that you retain the services of a trial lawyer to seek compensation for the damage to your property and to seek to obtain an injunction.
Christopher B. Dolan is owner of the Dolan Law Firm. Email questions to firstname.lastname@example.org.