How to Address Water Drainage from Adjoining Parcels
Any improvement to land made by private citizens will affect the otherwise natural flow of water. The disruption of the natural flow of water drainage can be a nuisance and/or cause damage to neighboring landowners.
Harm caused by surface water drainage has been handled differently by various jurisdictions through the United States, but can be summarized by three (3) basic doctrines or rules:
- The "Common Enemy Rule"';
- The "Civil Law Rule", or Anti-Common Enemy 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.
The Reasonable Use 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 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.
While it does not create bright line rules for determining fault, the Reasonable Use Rule adopted by North Carolina courts seems to be a well-balanced method of allowing interested parties to cooperate in handling water drainage issues as our communities attract more people and encourage development.
Can my neighbor direct their water on to my land?
If the higher landowner unreasonably diverts the flow of runoff, increases the flow, or contaminates the runoff in a way that causes material damage to the lower landowner, then the lower landowner can bring an action for an injunction and damages. Landowners are considered equal under common Law, whether they be private citizens, companies, road authorities, and federal, state or local governments. You could get advice from a drainage contractor, a drainage engineer, a lawyer, a conservation authority, but remember it is not their responsibility to solve the problem. Only the courts can make a final decision in a dispute. To obtain a ruling by a court, a civil action must be initiated by the damaged party.
What can be done with water once it enters my property?
The water can be addressed in any manner, so long as no blockage, impediment or obstruction occurs and it is discharged at or near the predominant low point of your property; however, other state and federal rules may apply, such as riparian buffer rules or wetland rules.
Where can I get advice about fixing my drainage problems?
Drainage problems are private property issues. It is highly recommended that the owner hire a qualified private consultant. If the drainage problem involves a shared easement, be sure both owners are involved in the solution.
Are there any laws that pertain to drainage?
The General Law in North Carolina states that the person on the lower estate must receive and pass the water from the higher estate(s). Also, specific statutes prohibit the blockage of streams, drainage ways and easements that move water from higher elevations. (See NCGS 77-13 and 77-14 in the supporting documents for more information)
Who maintains the rights-of-way of roads?
The Town of Black Mountain maintains roads and rights-of-way of Town maintained streets. Public (or State roads) are maintained by NCDOT. Private roads are the responsibility of the property owner(s).
Does Town of Black Mountain staff enforce drainage easements on individual property?
No, the Town of Black Mountain has no authority to enforce the drainage easements of individual property owners.