Neighbor Damaging Your Property by Diverting Water?
Has a neighboring landowner caused water to divert onto your property resulting in flooding or other damage?
Erection of dams, walls, fences, channels, berms, culverts, and culverts can change the natural flow of rainwater or water courses, resulting in destructive runoff to neighboring properties. Similar water damage can occur when a neighbor clears trees other vegetation, piles rocks or spoils, or increases impervious cover by building parking lots or sports courts.
Other times, site work changes the grade or elevation of a neighboring property, thereby increasing water flow or diverting water across property boundary lines.
Under Texas law, a person who diverts or impounds the natural flow of water (including rain water or melting snow) in a way that damages another’s property can be held liable for damages. Injunctive relief in the form of a Temporary Restraining Order or Injunction may also be available to the damaged landowner.
TEXAS STATUE ON OVERFLOW CAUSED BY DIVERSION OF WATER
Damage caused by diverting or impounding water is specifically prohibited and made actionable by a Texas Statute. 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.
Under this statute, the term “Surface water,” a 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.).
As provided in subsection (b), any person (including a neighboring landowner) whose property is “injured” by an overflow has remedies. Similarly, remedies exist under the Texas Water Code when the owner of “higher” land impounds water in a way the stops its natural flow to “lower” lands.
DAMAGES MAY BE AVAILABLE TO THE PARTY WHOSE LAND IS DAMAGED
The damages to land from diverted water can be catastrophic. Just like the Grand Canyon was formed by water runoff from the Rocky Mountains, unnatural sheet flow or channeled water flowing from neighbor’s property can cause destructive flooding and even permanent damage.
When this damage occurs, Texas law permits the recovery of money damages, which can include restoration costs.
INJUNCTIVE RELIEF IS AN AVAILABLE REMEDY FOR UNLAWFUL DIVERSION OF WATER
Sometimes recovery of money alone is not an adequate remedy for a person whose property is damaged by water diversion. This is especially true if an existing condition of the land or constructed alterations threatens repeated injury.
For example, if a neighbor has built a berm or channel that directs water toward your property, payment of money for past damages does not ameliorate the threat of future flooding. In these instances, injunctive relief can be an available remedy. In this way, a Court can order that the improvements causing the water diversion be removed as a remedy distinct from recovery of money damages.
An injunction is an equitable remedy available for a section 11.086 violation. See Boatman v. Lites, 888 S.W.2d at 93; 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.
The standard for obtaining an injunction is also altered in water diversion cases: 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)); see Marin Real Estate Partners, L.P. v. Vogt, 373 S.W.3d 57, 84 (Tex. App.—San Antonio 2011, no pet.) (“We hold this case involved a classic example of surface water—water diffused over the ground from falling rain—diverted by a change in elevation because of the construction of the development.”).
THE TAKE AWAY
If a neighbor has changed the natural flow of water in a way that has damaged your property, you may have a strong water diversion case under Texas Water Code section 11.086.
If your damages are ongoing because the condition causing the water diversion has not been abated, you may be eligible for injunctive relief in the form of a Court Order requiring that the alterations be removed so that the natural flow of water can be restored.