Injunction Possible if Neighbor Floods Your Property Each Time it Rains

Texas law protects an owner of land from damage — even insignificant damage — caused by runoff of water from a neighboring property.  Both compensatory damages and injunctive relief are available.   A landowner is not, however, entitled to relief simply because water enters their property from a neighbor’s land.

In order to recover or obtain injunctive relief, the complaining party must prove that the party who caused the water intrusion has done so be altering the natural flow of surface water through diversion or impoundment.  When this showing can be made, injunctive relief in the form of a Temporary Restraining Order or Injunction may be obtained while suit is pending.

OBLIGATION OF LOWER LYING LANDS TO ACCEPT NATURAL WATER RUNOFF

Just because water from a neighbor’s property enters yours doesn’t automatically mean you have a viable cause of action.  The law recognizes that, left in its natural state, rainwater will flow downward.  The unaltered flow of rainwater from a higher property to a lower property does not give rise to an actionable claim.

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.

A property owner has a responsibility  to stop the flow of surface water over and above the natural flow— the unlawful diversion—caused by the construction on their higher estate to the neighboring lower estate. This is also true when water is impounded or diverted from its natural course by berms, drains, pipes and constructed ditches and gulleys.

TEXAS STATUTE CREATING CAUSE OF ACTION FOR DIVERSION OF RAINWATER

One Texas Statute directly articulates the prohibition of diverting or impounding waters in a way that causes damages to another’s property.

Texas Water Code section 11.086 provides:

(a) No person may divert or impound the natural flow of surface waters in 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.

TEX. WATER CODE § 11.086.

MEANING OF SURFACE WATER

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.).

INJUNCTION AVAILABLE TO ABATE FLOODING

An injunction is an equitable remedy available for a section 11.086 violation. Boatman v. Lites,, 888 S.W.2d 90, 93 (Tex. App. – Tyler 1994); 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.).

“Section 11.086 does not require that the injury be ‘serious’ in order for an injunction to be appropriate.” Damron, 2002 WL 32344943, at *1.

It is not necessary for a plaintiff to plead or prove that the damages resulting from an unlawful diversion are “‘beyond the possibility of repair by monetary compensation in order to authorize the court to grant equitable relief.’” Boatman, 888 S.W.2d at 93 (quoting Red Lake Fishing & Hunting Club v. Burleson, 219 S.W.2d 115, 119 (Tex. Civ. App.—Waco 1949, writ ref’d)).