Water Damage to Adjacent Property

Ordinarily, a party that causes construction to be done on their property owes a duty of care to neighboring structures and may even be strictly liable for damage done to those structures.  For example, the New York Administrative Code provides for strict liability against an owner and contractor whose excavation below a certain level causes damage to an adjacent structure.  One area where the landowner causing damage to an adjacent property or structure will likely not be held liable, however, is when it consists of water damage.

Landowners will not be liable for damages to abutting property caused by the flow of surface water due to improvements to his or her land provided that the improvements were made in good faith to fit the property for some rational use.  Additionally the water may not be drained onto the adjacent property by artificial means, such as pipes and ditches.  The owner of the adjacent land or property who has suffered damages has the burden of establishing that the improvements on the defendant’s land caused the surface water to be diverted to his property and either that artificial means were used to effect the diversion or that the improvements were not made in a good faith effort to enhance the usefulness of the defendant’s property. (Hulse v. Simoes, 71 A.D.3d 1086, 899 N.Y.S.2d 268 [2d Dept. 2010])

In one case the court found that the record did not support that the waters being diverted onto the plaintiff’s property were coming from pipes, leaders and gutters on the adjacent property.  In fact, the plaintiff’s own expert reported that all rain water was drained onto defendants’ property, and was not being diverted onto plaintiff’s property by the use of pipes or other artificial means. Therefore the court found for the defendant, since there was no evidence that any construction on his property had caused water to seep onto and damage the adjacent property.  Where seepage occurs as a result of the natural grade of property, in the absence of any claim that such grade was created for the express purpose of diverting water onto another’s property, there can be no nuisance or trespass liability.  (Congregation B’nai Jehuda v. Hiyee Realty Corp., 35 A.D.3d 311, 827 N.Y.S.2d 42 [1st Dept. 2006])

Even where one landowner is an upper landowner and the plaintiff is a lower landowner with respect to the flow of surface water, the former is still free to make improvements to his or her land.  In fact, either proprietor can improve his land without being liable for a change in the flow of the surface waters, provided that he does not resort to the use of drains, pipes, or ditches.

In Buffalo Sewer Authority v. Town of Cheektowaga, 20 N.Y.2d 47, 281 N.Y.S.2d 326 (1967), for example, the town, in constructing receiving basins and a storm drain system, collected surface waters, diverted their natural flow through pipes and concentrated the flow into plaintiff’s system in such an artificial manner as to invade the rights of the plaintiff.  The court found that since such artificial means were used, the defendant was liable to the plaintiff for damages he sustained as a result of the construction.

Similarly, in Papadopoulos v. Town of North Hempstead, 84 A.D.3d 768, 922 N.Y.S.2d 481(2d Dept. 2011), the court found that the abutting landowners did not divert water artificially onto the adjacent landowners’ property, and improvements to a basketball area and gazebo on the former’s property were made in good faith.  This precluded the defendants’ liability in the adjacent landowners’ action to recover for damage caused by flow of surface water due to these improvements.

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