Flooding: Overflow Caused by Water Diversion or Impoundment

Under Texas law, a “lower estate must receive the surface waters naturally flowing thereon from a higher estate[.]” Bunch v. Thomas, 49 S.W.2d 421, 423 (Tex. 1932). But the lower estate “is not required to receive these waters except in their natural condition, untouched by the hands of man.” Id.

When a neighboring landowner changes the grade or otherwise alters property in a way that interrupts and changes the natural flow of stormwater, the results can be catastrophic.

Trey Wilson assists landowners in disputes related to flooding caused by modifications to neighboring lands.

TEXAS WATER CODE SECTION 11.086

Section 11.086 of the Texas Water Code gives a private landowner the right to recover damages and equitable relief resulting from the impoundment or diversion of surface water.

Section 11.086 states:

(a) No person may divert or impound the natural flow of surface watersin this state, or permit a diversion or impounding by him to continue, in a manner that damages the property of another by the overflow of the water diverted or impounded. 

(b) A person whose property is injured by an overflow of water caused by an unlawful diversion or impounding has remedies at law and in equity and may recover damages occasioned by the overflow.

 Surface water,  as used in section 11.086, means water “diffused over the ground from falling rains or melting snows” and that water remains “surface water” until it reaches some bed or channel in which water is accustomed to flow.”  Tex. Woman’s Univ. v. The Methodist Hosp., 221 S.W.3d 267, 277 (Tex. App.—Houston [1st Dist.] 2006, no pet.).

Under Texas law, the reference to remedies “in equity” provided in Section 11.086(b) includes injunctions and court-mandated abatement of the condition.   Temporary and permanent in injunctions are considered an equitable remedy available for a section 11.086 violation. See Boatman v. Lites, 888 S.W.2d 90, 93 (Tex. App.—Tyler 1994, no writ); see also Damron v. Till, No. 11-01-00355-CV, 2002 WL 32344943, at *1 (Tex. App.—Eastland Oct. 3, 2002, no pet.) (mem. op.).

This is a highly complex and nuanced area of the law, and the specific facts of each case determine the time within which suit must be filed and the measure of damages available to an injured party.