Can a Neighbor Drain Water on Your Property?

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

In Massachusetts, the 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 harmful and unreasonable, the landowner may be held liable.

Can a Neighbor Legally Divert Water Onto Your Property?

Your neighbor can divert water onto your property in certain instances without legal liability. However, the legal position can vary on a case-by-case basis. Understanding the laws regarding water drainage changes is essential to assert your rights successfully. The challenge is that these laws can be complex, making it prudent to contact an experienced attorney for tailored advice. We discuss the fundamentals of water drainage laws so you can understand what you’re up against.

What Are the Water Drainage Laws in Massachusetts?

Water drainage in Massachusetts is predominantly governed by case law. Case law is law based on judicial decisions or precedents rather than statutes or regulations. Generally, decisions of higher courts bind lower courts when deciding similar cases. This concept, often known as stare decisis, helps ensure consistency and predictability in the legal system. Respecting previous court decisions also brings stability and continuity to the interpretation and application of the law.

For years, courts relied on the common enemy rule to decide water drainage cases. The law protected landowners who removed or diverted surface water from their land onto surrounding properties. Subject to a few exceptions, landowners could not be held liable for damages to adjoining properties resulting from activities undertaken on their property that affected the surface water flow. Therefore, if Person A caused water to run off to Person B’s property, Person A was generally excused from legal liability. The primary reason was to facilitate urban development through construction activities. 

Massachusetts courts later replaced the common enemy rule with a more flexible law — the reasonable use doctrine. Since its introduction, the doctrine has guided most cases regarding water drainage, although other principles may also apply. For example, a plaintiff or person instituting legal action can rely on nuisance or negligence to assert their rights.

What Is the Reasonable Use Doctrine?

The reasonable use doctrine allows landowners to make reasonable use of their property, even if they alter the flow of surface water and cause some harm to others. On the other hand, if the diversion is unreasonable and amounts to harmful interference, the landowner could be civilly liable. 

The challenge for neighbors engaged in this type of dispute is that two landowners may have different perspectives of what constitutes reasonableness. One landowner might think it is perfectly acceptable to change a waterproof street that is arched in the middle and cause water to flow toward another property. That same landowner might think it’s reasonable to put parking meters on the property or rent the property as parking spaces to others, allowing water runoff and causing 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, unreasonableness is a changing and elastic idea. It varies from case to case. Thus, to determine whether an alteration of a property is truly unreasonable, an element of fact is needed.

However, the court may consider factors like the following:

1. The amount of harm caused
2. The foreseeability of the harm
3. The landowner’s motive

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.

Can You Claim Negligence for Water Drainage?

You may sue the landowner for negligence, depending on the facts of the case.  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. You suffered damages or a calculable loss as a result of the breach of duty

Can You Claim Private Nuisance for Water Drainage?

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 the use and enjoyment of their own property. For example, in Murphy v. Chatham, the court found that a town’s negligent failure to unblock a culvert resulting in flooding of landowner’s land is a private nuisance for which the town can be sued.

What Are the Strategies for Managing Stormwater and Preventing Disputes?

While landowners and developers can employ engineering solutions to manage stormwater and water drainage, you can also prevent disputes other ways:

1. Understand and adhere to water drainage laws. Knowing your rights and limitations can help you plan and execute construction projects or other activities.
2. Seek legal advice when disputes arise. Lawyers can help parties learn their responsibilities and mediate conflicts.
3. Explore easements to grant rights and clarify legal obligations.
4. Execute a maintenance agreement detailing each party’s rights and responsibilities, especially in a commercial setting. Contracts can deter violations of the law.

What Are Your Rights if a Neighbor Diverts Water Onto Your Property?

You can do the following if your neighbor diverts water on your property:

• Resolve the dispute amicably: You can discuss the issue with your neighbor to find a solution. The landowner may be unaware of the issue or its impact on your property. You may instruct your lawyer to issue a cease and desist letter if your neighbor refuses to cooperate.
• Institute legal action: If you have a legitimate claim, you can sue your neighbor for legal relief. Available remedies may include injunctions and damages. Injunctions compel the wrongdoer to do or refrain from doing an act, whereas damages generally compensate the injured parties for the losses.

Contact Calabrese Law Associates for Professional Assistance

Each case is unique and may be affected by different factors. The best way to determine whether you have a claim is to consult a trusted real estate attorney. Calabrese Law Associates has knowledgeable and experienced lawyers ready to guide you through your legal challenges. We dedicate resources to help clients, regardless of how complex the case is. Contact us to get a personalized evaluation of your situation. 

This publication and there contents are not to be construed as legal advice nor a recommendation to you as to how to proceed. Please consult with a local licensed attorney directly before taking any action that could have legal consequences. These publications and there content do not create an attorney-client relationship and are being provided for general informational purposes only. See our Legal Notices page for more information concerning our Website Terms of Use and Disclaimers.