Water from rainfall or snowmelt flows wherever gravity will take it without regard to property boundaries. The natural formation of the ground will generally determine how water will drain from a landowner’s property into the neighboring parcels (and vice versa). A landowner who erects a building, alters the shape of the land, or fills in low areas with dirt can cause additional water to flow onto the neighbor’s land causing damage. On the other hand, a landowner may erect a wall or a berm to keep flowing water out which causes water to back up on the neighboring land. This leads to disputes among adjacent landowners that can ultimately result in litigation. Before changing the composition of your land that affects water drainage, Michigan residents should be aware of their rights and responsibilities to their neighbors.
Michigan courts have adopted the “natural flow doctrine” to govern water drainage. This means that natural surface waters created by rain or snow must be allowed to flow unrestricted on to lands at lower elevations over natural water courses. Generally, landowners are prohibited from artificially increasing the speed or amount of water, or backing up water by erecting dams or forcing a divergence, on someone else’s property. The landowner may be liable for any damage caused from the change in water drainage to the neighboring property. In Boyd v Conklin, 54 Mich 583; 20 NW 595; 52 Am Rep 831 (1884), plaintiff sued defendants for damages from removing a dam which he had built across an outlet that drained the defendant’s property onto his. The Michigan Supreme Court upheld the verdict in favor of the defendants, finding that the plaintiff as owner of the lowlands must accept surface water which naturally drains on his land. Since then, the “natural flow doctrine” has been the law of the land.
In Wiggins v City of Burton, 291 Mich App 532 (2011), the Michigan Court of Appeals reaffirmed the long history of the natural flow doctrine and concluded that the artificial discharge of additional water onto someone else’s land may constitute an actionable trespass. The common law was summarized as follows:
‘It has been “the settled law of this State” for more than a century that the natural flow of surface waters from the upper, dominant estate forms a “natural servitude” that encumbers the lower, servient estate. Carley v Jennings, 131 Mich 385, 387; 91 NW 634 (1902); Leidlein v Meyer, 95 Mich 586, 589; 55 NW 367 (1893); see also O’Connor v Hogan, 140 Mich 613, 624; 104 NW 29 (1905); Terlecki v Stewart, 278 Mich App 644, 661; 754 NW2d 899 (2008); Reed v Soltys, 106 Mich App 341, 349; 308 NW2d 201 (1981). The owner of the lower, servient estate must bear this natural servitude, and is bound by law to accept the natural flow of surface waters from the upper, dominant estate. Bennett v Eaton Co, 340 Mich 330, 335–336; 65 NW2d 794 (1954); Launstein v Launstein, 150 Mich 524, 526; 114 NW 383 (1907); Cranson v Snyder, 137 Mich 340, 343; 100 NW 674 (1904); Lewallen v City of Niles, 86 Mich App. 332, 334; 272 NW2d 350 (1978). It is similarly well settled, however, that “the owner of the upper estate has no right to increase the amount of water that would otherwise naturally flow onto the lower estate.” Kernen v Homestead Dev Co, 232 Mich App 503, 512; 591 NW2d 369 (1998). For instance, it has been said that the owner of the upper estate “cannot, by artificial drains or ditches, collect the waters of his premises, and cast them in a body upon the proprietor below him to his injury.” Gregory v Bush, 64 Mich 37, 42, 31 NW 90 (1887). Nor may the owner of the upper estate “concentrate [the surface] water, and pour it through an artificial ditch or drain, in unusual quantities and greater velocity, upon an adjacent proprietor.” Peacock v Stinchcomb, 189 Mich 301, 307; 155 NW 349 (1915); see also Miller v Zahn, 264 Mich 306, 307; 249 NW 862 (1933). Stated another way, “the owner of the dominant estate may not, by changing conditions on his land, put a greater burden on the servient estate by increasing and concentrating the volume and velocity of the surface water.” Lewallen, 86 Mich App at 334; 272 NW2d 350.’
In Wiggins, the plaintiffs purchased a lot that was part of a newly constructed subdivision encumbered with a “private storm detention” easement. The neighbors complained to the City of Burton that the new subdivision caused an increase in storm water drainage onto their properties, so the city built a “relief drain” that diverted drainage from the neighbors’ lots onto the plaintiff’s lot. This resulted in a deposit of large amounts of drainage that turned their yard into a retention pond. The Michigan Court of Appeals indicated that the plaintiffs were required to accept the natural surface water runoff that came from the subdivision, but that the neighbors and the city had no right to increase the natural amount of runoff on the plaintiff’s lot by making their yard the outflow of the large constructed drain.
The “natural flow doctrine” also applies to the decrease of water from a higher estate to a lower estate. The adjacent landowner at the lower elevation would have a cause of action against the neighbor who set up artificial structures or dams to prevent water from naturally draining to his or her property for irrigation purposes. The affected landowner could file suit to have the offending structure improved, to seek an injunction to prevent future obstructions, and obtain a money judgment for damages related to the loss of water.
Of course, a landowner affected by the artificial drainage erected by a neighbor, whether it increased or decreased the flow of surface runoff, can forfeit and lose the right to protest this situation if he or she waited too long to take action. The statute of limitations for civil actions provides that “[n]o person may bring or maintain any action for the recovery or possession of any lands or make any entry upon any lands unless, after the claim or right to make the entry first accrued to himself or to someone through whom he claims, he commences the action or makes the entry within… 15 years.” MCL 600.5801(4). If a modification in water flow by the offending neighbor exceeds 15 years without challenge, that neighbor would essentially acquire a prescriptive right to change the drainage.
In Terlecki v Stewart, 278 Mich App 644; 754 NW2d 899 (2008), the Michigan Court of Appeals reasoned that the 15-year period is the length of time that the higher estate could obtain a prescriptive easement for non-natural water flow over the neighbor’s property, so the lower estate should have that long to prevent the upper estate from obtaining said prescriptive easement to flood the lower property:
“An easement by prescription results from use of another’s property that is open, notorious, adverse, and continuous for a period of fifteen years. Likewise, a flowage easement may arise “from an open, notorious, continuous, and adverse use across the land of another for a period of 15 years. Also, a prescriptive flowage easement may be lost by a 15-year period of continuous nonuse. The owner of flooded property may at any time, during the prescriptive period of flowage, protect his rights. There is not an instant during the time that the prescriptive period is running when the owner of the servient estate could not compel the owner of the dam to remove it. Thus, the statute of limitation on actions to prevent a prescriptive flowage easement from arising is the 15-year limitations period of MCL 600.5801(4). This same reasoning would justify invoking the 15-year limitations period for an action to remove obstructions to a natural flowage easement.” Id at 662-663 [internal citations deleted].
Hopefully, neighbors can peaceably and amicably work out their differences on water drainage issues with respect to their properties. If not, you may have to turn to the court system to get relief. A skilled property lawyer can evaluate your case and determine if you are entitled to any legal recourse. These types of cases are very fact-driven and require determining what the “natural flow” would have been but for the interference, what is the possible cause of damage on the property is, and whether there is a possible cause of action for trespass, nuisance or even acquiring an injunction. The law in this area is very complicated and a lawyer can help answer your questions.
If you have any property law issue in Michigan and need legal representation, then do not hesitate to contact the experienced attorneys at Kershaw, Vititoe & Jedinak PLC for assistance today.