This article appears in the August, 2020 edition of the Austin Construction News online publication.
By J. Andrew Scott
Have you ever considered at what point should rainwater be characterized as surface water or ground water or some other type of water? Probably not. You may be surprised to learn that the answer is not so clear-cut.
Let’s say that you own a vacant parcel of land. Your neighbor also owns a vacant parcel of land. One day, your neighbor decides to build a building on their land. When it rains, the rain water naturally flows to a retention pond behind your land and your neighbor’s building. Years later, you build a building on your land. Your engineer recommends that your building sit at a higher elevation than your neighbor’s building. To accommodate for rainfall, you decide to build a channel to funnel the rainwater coming off of your building to the retention pond behind your property.
One day, a massive 100-year rain event (10 inches of rainfall over 24 hours) sweeps through your neighborhood. Your well-designed channel cannot direct all of the water coming off your building. So some of the rainwater enters into your neighbor’s building, thereby causing damage.
The above scenario probably opens the door to a host of causes of action, including negligence, temporary or permanent nuisance, and maybe gross negligence. But there also exists a lesser known cause of action found at Section 11.086 of the Texas Water Code.
Under Section 11.086, “no person may divert or impound the natural flow of surface waters in this state, or permit a diversion of impounding by him to continue, in a manner that damages the property of another by the overflow of the water diverted or impounded.” Put differently, to prevail on a Section 11.086 claim, a plaintiff would need to prove that: (1) there was a diversion or impoundment of surface water; which (2) causes; (3) damage to the property of the plaintiff landowner.
This seems pretty straightforward, right? Some neighboring property owner moved or stored surface water in such a way that caused damage to another property owner. Unfortunately, it is not so straightforward, and all of the uncertainty rests on two words: surface water. For starters, surface water is not defined by the Water Code, which means practitioners must resort to the Texas courts’ interpretation and judicial definition of surface water. And this is where it gets complicated. Many Texas courts have focused their attention on whether surface water has been controlled by artificial means or “touched by the hands of man.” In a rather instructive 1987 case, the Austin Court of Appeals observed that water is no longer surface water when it has been altered by the hands of man so that it flows in greater quantities or in a directed manner. Other courts have held that a claim under the Water Code is inapplicable once water is controlled and directed by a watercourse, regardless of whether the watercourse is naturally occurring (e.g., a natural gully) or man-made (e.g., ditches and culverts). Thus, the majority rule may be best summarized as: rainfall that diffuses across the ground is diffused surface water and remains so until the water is controlled and directed by such devices as swales, channels, ditches, tanks, ponds, or pipes. If the water is not surface water, a plaintiff cannot recover under Section 11.086 (although they might prevail on another cause of action).
Meanwhile, other Texas courts have questioned or refused the “touched by the hands of man” exception. Namely, a Texas Supreme Court opinion from nearly 100 years ago recognized that a neighboring property owner of a higher elevation may be liable for diverting water onto a lower property if the upper landowner has altered the natural flow of surface water. Similarly, some academics have criticized the judicial definition of surface water.
Why does this matter?
A plaintiff suing under Section 11.086 of the Water Code is suing under a theory of strict liability. This means that a person will be found liable for damages regardless of whether the person found strictly liable acted with fault or negligence. Therefore, if your property is damaged by a neighboring property owner’s diversion of water, you may be able to sue your neighbor under a theory of strict liability—which means you don’t have to prove your neighbor acted with fault or negligence. Conversely, if you build a swale, channel, culvert or some other drainage device, and that device directs rainfall towards your neighbor, you should be prepared to defend a claim in which the injured party does not have to prove that you acted with fault or negligence.
Andrew Scott is a construction lawyer with the law firm of Cantey Hanger, LLP. He may be reached at (817) 877-2802 or by email at ascott@staging.poised-team.flywheelsites.com.