WHAT IS THE LIABILITY FOR THE DISCHARGE OF WATER TO AN ADJOINING PROPERTY?
by Sam K. Abdulaziz

The California Second District Court of Appeal explained the law dealing with the liability of land owners for water damage caused to adjoining property. The decision is of interest to contractors if the construction causes water to be diverted onto or away from a property. The contractor could be liable for the harm caused.

The Court of Appeal looked to prior California Supreme Court decisions which dealt with the various theories governing liability for property damage caused by surface water. Surface water is defined as water running over the surface of land and resulting from rain. That is different from water flowing in a fixed channel or an identifiable body of water such as a river or lake.

The Supreme Court has held that California follows the "civil law rule." Many such rules date back to a time, when the bulk of our laws were fashioned after English law. The civil law rule as to surface water held that "the owner of an upper, or dominant, estate is entitled to discharge surface water from his land as the water naturally flows." That is to say that, if surface water flows across property and then on to someone else's property, you need not do anything to divert that water to keep it from injuring the other property owner. 

The court went on to say that as corollary to the civil law rule, the upper land owner is liable for any damage he causes to adjacent property by the discharge of water in an unnatural manner. In essence, each property owner's duty is to leave the natural flow of surface water undisturbed. This is important for contractors to understand.

This has been the case for many years. The Supreme Court concluded that it still is valid even though we now have developed urban areas. However, the Court went on to state that no party can act arbitrarily or unreasonably in his relations with other land owners and still be immune from liability. Thus, the Court modified the civil law rule by adding an evaluation of the reasonableness of the parties' actions.

It is the duty of every person to take reasonable care in using his property to avoid injury to adjacent property through the flow of surface waters and the other must exercise reasonable care to shield himself from liability. The owner of the lower land must also take reasonable precautions to avoid or reduce any actual or potential injury. 

The Supreme Court also explained that California's modified rule, "has the advantage of predictability, in that responsibility for diversion of surface water is fixed, all things being relatively equal. On the other hand, we cannot permit certainty of liability to be an excuse for tolerating unreasonable conduct by any landowners in modern society, whether they be the upper or lower, urban or rural. Consistent and wise application of the California rule encourages profitable and enjoyable use of property, and provides a basis for mutual resolution of problems caused by errant surface waters.

The contractor should take from this analysis that if the direction of surface water is diverted so as to injure another, the owner will be liable to the adjacent land owner. If that occurs, the contractor changing the flow can find itself involved in a lawsuit. Contractors should use caution in any grading or landscaping activities which may affect the flow of water across a property.

Sam Abdulaziz can be reached at Abdulaziz & Grossbart, P.O. Box 15458, North Hollywood, CA 91615-5458; (818) 760-2000, Facsimile (818) 760-3908  www.aglaw.net