Surface Water: Valuable Resource or Common Enemy?

Water flowing throughout Texas in defined watercourses such as rivers, lakes, and streams belongs to the state. However, much of the water in Texas is surface water that has yet to reach a clearly defined watercourse, and instead flows over and around private property, much to the delight or chagrin of private landowners.

When it comes to commercial or residential property, surface water is never a good thing, and landowners will do almost anything to get rid of it – including sending it next door. This can not only create a strain on neighbor relations, but can wreak havoc on anything from landscaping and signage to foundations and property values.

There are two competing legal theories on the diversion of surface water in the United States: Natural Flow and Common Enemy. The natural flow approach has its roots in the idea that water is a valuable resource, and that each landowner should be entitled to rely on the natural flow of water. Actions taken to divert the natural flow of water subject the diverter to liability for potential damages caused by any such diversion.

The common enemy approach, however, regards surface water as the common enemy of all landowners, and as such, entitles landowners to take any measures necessary to impound or divert water away from their property, including diverting water onto neighboring parcels of land.

In Texas, as in most Western states, the law of the land is natural flow. The Texas Legislature officially adopted this approach when it enacted Section 11.086 of the Texas Water Code. Section 11.086 prohibits a landowner from diverting or impounding the natural flow of surface water in a manner that damages the property of another. This section also provides a private cause of action for any landowner whose property has been damaged by an unlawful diversion or impoundment.

Unlawful diversion under Section 11.086 can result in either temporary or permanent harm to a landowner’s property. Where the harm is temporary; i.e. sporadic and contingent on some irregular force such as rain, the appropriate remedy is an injunction against the person causing the diversion or monetary damages equal to the cost of repairs for anything damaged by the diversion. However, where the diversion causes permanent harm to property, the measure of damages is the difference between the fair market value of the property without the harm and the fair market value of the property as it exists with the harm.

Section 11.086 has largely replaced the common law causes of action for the diversion of water such as nuisance and trespass to real property. This is due to the fact that these common law causes of action require a showing of culpability on the part of the person causing the diversion. For nuisance, a plaintiff has to prove that the diversion was caused negligently, while for trespass, a plaintiff has to prove that the diversion was intentional. Section 11.086 can be utilized in the absence of any such showing of culpability. As such, Section 11.086 represents the most attractive cause of action for a party aggrieved by an unlawful diversion of water.

By J. Allen Smith and Braden M. Wayne

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