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A Blog about Real Estate, How it Can Be Damaged, and Disputes Over its Transfer

This blog is a personal blog written to discuss legal issues affecting Georgia property, and how it is damaged, transferred, and fought over. I write this partly to keep abreast of the law, and partly to offer a forum for my writing. In order to find content, I often analyze Georgia Supreme Court decisions. I try to update this blog as I can, but writing is a time consuming process.

Wednesday, September 29, 2010

Defenses to Claims of Nuisance Due to Storm Water Flooding

When persons seek to impose liability on others claiming a nuisance arising from flooding or drainage, it is important to first assess whether the up hill owner or others have done anything to change the natural flow of water.  A party seeking to impose liability on an up hill owner for flooding his property must do more than show that the source of the flood waters is from up hill.  All water flows down hill.  

Defendants do have arguments they can make in defense of nuisance cases.  “A surface water invasion by itself does not show that a tort has taken place.”  Dunn v. Payne, 205 Ga. App. 440, 441 (1992).  There is no strict liability for trespass and nuisance in Georgia. “Liability must be based on some element of intentional or negligent conduct which proximately causes the water damage. In a case involving surface water runoff, the responsible party can claim no right founded in property law which will displace the standard principles of tort liability.”  GAJUR PERSINJ § 42:9.  A fear of continued injury in the future is not sufficient to constitute a continuing nuisance. Southeastern Liquid Fertilizer Co. v. Chapman, 103 Ga. App. 773, 775 (1961). “A party is not guilty of an actionable nuisance unless the injurious consequences complained of are the natural and proximate results of his own acts or failure of duty.” Citizens & Southern Trust Co. v. Phillips Petroleum Co., Inc., 192 Ga. App. 499, 500 (1989). See Lore v. Suwannee Creek Homeowners Ass’n, Inc., 2010 WL 252203; see also Sprayberry Crossing P’ship v. Phoenix Supply Co., 274 Ga. App. 364 (2005).

Landowners who have water running off their property can argue that an unintentional discharge of runoff and sediment in Georgia does not create an actionable claim. “With the exception of the situation where a party is engaged in an abnormally dangerous activity, an unintentional and non-negligent entry onto [another property owner’s land] does not automatically subject an individual to liability even though the entry causes harm to the possessor.” C. W. Matthews Contracting Co., Inc. v. Wells, 147 Ga. App. 457, 458 (1978).  Accord  Restatement of the Law, Torts 2d, Vol. I, s 166 (1965).  Brand v. Montega Corp., 233 Ga. 32, 33 (1974).

Accordingly, not all instances of flooding from water flowing off an up hill owner’s property mean that the up hill owner is liable.  ‘Water runs and it ought to run in the manner in which it was accustomed to run.’‘No riparian proprietor has the right to use the water to the prejudice of other proprietors above or below him. He has no property in the water itself, but a simple usufruct while it passes along. 3 Kent's Com. 439.  Goble v. Louisville & N. R. Co.,  187 Ga. 243, 246 (1938).   

One my favorite quotes stating the principles applicable to land owner liability for flooding comes from a 1977 opinion of the Georgia Supreme Court:

As sure as night follows the day, water from heaven must go and will go somewhere. Rainfall not entering the soil itself will run off towards lower land in keeping with the indisputable law of gravity. If man diverts the water from its usual course, or causes it to congregate in large quantities on the property of his upper or lower riparian neighbor this could be considered wilful. But, the piling of dirt on defendant's own property in carrying out a legitimate business activity, not abnormally dangerous when supervised under the authority of the law of this state, without more, would not support an allegation of conscious indifference where a portion is washed down natural drains onto another's property.

General Refractories Co. v. Rogers, 240 Ga. 228, 231 (1977).

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