Introduction
Imagine this scenario:
You are at the stage of your life where you have purchased property and are in the process of building your dream home. One day your neighbor contacts you alleging that your construction and landscaping is causing increased water runoff and damage to his home and property.
Or imagine the flip side:
You have lived in your house for years with no water issues. Suddenly, you are dealing with damaging water runoff right after every storm as a result of construction on your adjoining neighbor’s property.
In each situation, what is a party to do? Can a person be restrained from building his dream home on his own land? Does a person have to lie awake at night worrying about water damage during every hard rain as a result of construction next door? In Alabama, the answer often depends on the facts of the case, such as:
- Are the properties located in a municipality or unincorporated area?
- Has the natural flow of surface water been altered?
- Has the amount of velocity of surface water been altered?
- Has the channeling of surface water unduly burdened and damaged the adjoining landowner?
- Could the alteration to the surface water runoff been done in a less damaging manner?
This article will address the standard of responsibility for surface water runoff in Alabama and provide clarity on landowners’ rights in these types of situations. For a detailed legal analysis of surface water runoff rights in Alabama, download SURFACE WATER RUNOFF – Rights and Responsibilities Under Alabama Law.
General Surface Water Rules Across the Country
States across the country have generally followed one of two rules involving surface water runoff. The first is the civil law rule (“Civil Rule”). The second is the common law rule, or as it is also known, the common enemy rule (“Common Enemy Rule”).
The Civil Rule provides, in general, that a landowner may not interfere with the natural flow of surface water in such a way so as to injure his neighbor as the lower landowner is only required to receive water naturally flowing from the upper landowner. This rule also recognizes that a lower landowner is prohibited from disrupting the flow of water which naturally flows from the higher land.
The Common Enemy Rule provides, in general, that because surface water is a common enemy to each landowner, every person may take whatever action they deem necessary to protect his property from surface water, even if such action damages his neighbor.
Surface Water Rules in Alabama
Unfortunately, the strict application of each rule can cause unjust results. For example, the strict application of the Civil Rule would essentially prevent any development or any change in the natural state of the property. Likewise, the strict application of the Common Enemy Rule would allow adjoining landowners to unreasonably injure each other with surface water run off with no repercussions. So where does Alabama fall in regard to surface water runoff issues?
Alabama initially recognized and applied both standards depending on whether the property was located in a rural area or in an incorporated city or town. Specifically, Alabama initially applied the Civil Rule in rural areas and the Common Enemy Rule in incorporated cities and towns. The rationale for different standards was the recognition that development needed to be encouraged in incorporated cities while rural areas should not give the same priority to development over concerns of landowners regarding water runoff.
Over time, decisions in Alabama have recognized that the strict application of each rule would result in unjust decisions. Therefore, Alabama has evolved to recognize a modified version of each rule and that the location of the property, whether in a rural area or in an incorporated city of town, does not prevent a modified rule being applied.
A. The Civil Rule in Alabama
As early as 1880, the Alabama Supreme Court recognized the potential hardship in strictly following the Civil Rule and as such, adopted a modified Civil Rule in Hughes V. Anderson, 68 Ala. 280 (1880).
In addressing the rights and responsibilities relating to surface water runoff in rural areas, the Alabama Supreme Court first recognized that an upper landowner has an implied easement for drainage across the land of the lower landowner for “waters which flow naturally, without any act of man.” In determining how to balance the interest of each landowner, the Hughes court adopted the following standard:
Hence, for the sake of agriculture–agricolendi causa–a man may drain his ground which is too moist, and discharging the water according to its natural channel, may cover up and conceal the drains through his lands–may use running streams to irrigate his fields, though he thereby diminishes, not unreasonably, the supply of his neighbor below–and may clear out impediments in the natural channel of his streams, though the flow of water upon his neighbor be thereby increased. … It is not more agreeable to the laws of nature that water should descend than it is that lands should be farmed and mined; but in many cases, they cannot be, if an increased volume of water may not be discharged through natural channels and outlets. The principle, therefore, is to be maintained; but it should be prudently applied. … The plaintiffs had no right to insist upon his receiving waters which nature never appointed to flow there.
So Alabama has long recognized a modified Civil Rule guided by the following principles:
- A landowner may, after giving due consideration to his neighbor, channel such water that would have naturally flowed in a volume and velocity onto the lower landowner: and
- In certain circumstances, additional water may be redirected onto a neighbor’s land to such neighbor’s detriment, but that this “channeling of water” must be balanced considering a lower landowner’s right not to be damaged from excess water channeled onto his property against the desire to allow development, progress and the necessity for the improvement on the property of the upper landowner.
Subsequent Alabama Supreme Court decisions seemed to limit the Hughes ruling allowing excess water to be channeled onto the lower landowner in limited situations. Despite these prior conflicting decisions, the Alabama Supreme Court in Vinson v. Turner, 40 So.2d 863 (Ala. 1949) clarified and confirmed that the modified Civil Rule allows an upper landowner, in certain circumstances, to channel excess surface water in greater volume and velocity than normal onto his neighbor’s property. Although the Vinson court recognized that prior Alabama decisions regarding surface water were are not always harmonious, it first affirmed the modified Civil Rule and further stated that although prior decisions hold that under no circumstances is an upper landowner allowed to increase the water flow above what the lower landowner would naturally receive, in exceptional situations, water flow may not only be re-directed but actually increase the burden on a lower landowner in a greater volume and rate than would naturally flow when it stated:
… under some exceptional circumstances, he is permitted to increase the burden at a particular point by concentrating into one channel and depositing, at that point, in greater volume and with greater rapidity and more injury than nature, water which had theretofore naturally flowed by divers natural channels over a wider area on the same lower ester.
The Alabama Supreme Court in Vinson court emphasized that allowing excess water to be channeled on lower landowner’s property should be applied sparingly and only after due consideration was given to the rights of the lower landowner. In fact, the Vinson court set out the following test for a jury to determine whether, after giving due consideration to the welfare of one’s neighbor, an exceptional situation exists so as to allow a party to channel surface water onto an adjoining landowner in greater volume and velocity than naturally exists:
- whether exceptional circumstances and conditions exist as alleged by the upper landowner so as to justify excess surface water to be channeled onto an adjoining landowner exist and if so:
- whether the exceptional circumstances and conditions faced by the upper landowner are such that channeling the excess surface water onto his adjoining landowner is justified and if so:
- whether the particular drain or ditch utilized by the upper landowner defendant was necessary for the improvement of the upper landowner;
- whether some other method could have been utilized by the upper landowner that could have reasonably accomplished the same result at less damage to the lower landowner; and
- whether the value of the improvement to the upper landowner so outweighed the detriment of the lower landowner and general good so as to justify it.
B. The Common Enemy Rule in Alabama for Incorporated Cities and Towns
In Alabama, it is well established that the Common Enemy Rule applies in incorporated cities and towns because of the artificial conditions which are created in the development of towns and improvements located on the lots in such towns. However, a significant exception to the strict application of the Common Enemy Rule was recognized by the Alabama Supreme Court in the decision of Kay-Noojin Development Co. v. Hackett, 45 So.2d 792 (Ala. 1950). In this matter, the Alabama Supreme Court recognized that although courts have reached different results based on whether the property was located in an incorporated town or city, moving forward the rule would be that an upper landowner who collects surface water and channels it onto a lower landowner when it would normally have been scattered and diffused is responsible for damage caused to the property of the lower landowner regardless of whether the property is located in an incorporated town or city.
Subsequent decisions have affirmed this modified Common Enemy Rule even if the water is directed into a naturally occurring watercourse, that is, if one elects to channel water into a drainage ditch, a duty arises to ensure that the water directed into such ditch would not cause it to overflow and damage the property of the adjoining landowner.
C. The Rule Applied When Property Is Located in Both Rural and Incorporated Areas
Alabama clearly follows some variation of the Civil Rule when the property is located in a rural area and a variation of the Common Enemy Rule when the property is located in an incorporated town. The question arises as to which rule applies if one property is located in an incorporated area and the other property in an unincorporated area? Alabama holds that the modified Civil Law rule applies in this situation so that the upper landowner can alter the flow of surface water to improve his property, provided, however, he has a duty not to unduly burden the lower property by causing substantial damage and not to unreasonably interfere with the possessory rights of the lower landowner.
Conclusion
So where does Alabama law stand on property owners’ rights when surface water is channeled or redirected onto the property of a lower landowner? Regardless of which rule applies, in general, an upper landowner may alter the flow of surface water to improve his property provided he does not unduly burden and damage the property of the lower property owner by increasing the volume and velocity of the surface water disbursed. The lower landowner has, in general, the right not to be injured by an upper landowner channeling or altering the natural drainage of surface water onto the property of the lower property owner. These rights of upper and lower landowners exist regardless of whether the property is located in a rural area or in an incorporated city or town. Notwithstanding the general rules set forth herein, the Alabama Supreme Court has held that when the modified Civil Rule is applicable, then in “exceptional circumstances”, an upper landowner may change the natural flow of surface water onto the lower landowner property even if this channeling of water increases the volume and the velocity of water disbursed onto the lower landowner. However, this will be allowed only in limited situations and only after a jury considers the criteria set forth in Vinson to determine whether an exceptional situation exists, whether such actions were justified, and whether any lesser alternative could have been pursued. All of these situations, and resulting outcomes, will depend greatly on the facts of a particular matter.
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