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Surface Water: What Are Your Rights and Responsibilities

A common problem encountered by homeowners and owners of commercial properties alike is the runoff and drainage from surface waters. As a property owner in North Carolina, you are allowed a decent amount of leeway in how you would like to use your property, provided that it is unencumbered by easements, licenses, or other usage or zoning restrictions. However, you do have certain obligations to your neighbors, including obligations regarding the drainage of surface waters.

In general, North Carolina law allows landowners to change the flow of surface waters by adding improvements to the land, such as houses and commercial buildings. North Carolina has an interest in allowing its citizens to make liberal improvements to land for societal gain. However, often this change in the land, either by grading, changing the surface vegetation, or adding specific drainage channels, can change the way that water naturally flows over your land as a result of rain. This becomes a problem when the property down from you in elevation or grade becomes flooded with water that damages their property. If it's severe enough, their flooding problem could become your legal problem via a nuisance claim.

There are several legal theories that pertain to the flow of surface water: The Common Enemy Rule, the Civil Law Rule, and the Reasonable Use Rule. The Common Enemy rule essentially states that surface water is an enemy that is common to all landowners. Under this rule each landowner is permitted to do what they will to alleviate the problem, and no other landowner will be responsible to another for problems caused by the flow of water. The Civil Law Rule is quite the opposite: it states that an owner is liable to another owner when they change the natural flow of water on their land and it results in harm to the second owner. Both of these rules were softened over time and began to incorporate elements of reasonableness.

North Carolina traditionally followed the Civil Law Rule until the 1970s, when the North Carolina Supreme Court issued their opinion in Pendergrast v. Aiken.1 Here, the Supreme Court adopted the Reasonable Use Rule. This rule states that landowners are allowed to make reasonable use of their property, even if it results in harm to another landowner. Landowners will only be responsible for the damage they cause if the reason they changed the flow of surface water was unreasonable. However, in certain circumstances, even if the use of the land is reasonable, "[t]he gravity of the harm [to the plaintiff] may be found to be so significant that it requires compensation regardless of the utility of the conduct of the defendant." In other words, even if you act reasonably, there are times when the damage that you cause could be so significant that it requires you to compensate another landowner whose property you have damaged. 

If you are having trouble with surface water damaging your property, or if someone is claiming that you are responsible for their damage, contact Miller Law Firm to set up a consultation about your rights and responsibilities.

1. For further reading, see Pendergrast v. Aiken, 293 N.C. 201 (1977)

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