Who is Liable for Flooding of Adjacent and Nearby Properties?

Miles & Stockbridge P.C.

The rains over the past few months of summer piqued the curiosity of some Maryland property owners who now would like to know if: (1) neighbors are liable for flood damage to adjacent or nearby properties, and (2) they are able to redirect water from their properties when doing so adversely impacts other properties. Much of Maryland experienced record breaking levels of rainfall over the course of the summer. While the rains may have caused certain crops to flourish, the deluge also wrought havoc by flooding fields, yards and basements. Some affected property owners, often those either uninsured or underinsured for such events, are now inquiring who is liable for flood damage caused by water runoff from one property onto another, and whether they are able to redirect water from their properties to prevent future damage.

Maryland’s longstanding water drainage rule generally precludes finding property owners liable for water damage arising from naturally flowing waters. In its nineteenth century Philadelphia, Wilmington & Baltimore Railroad Company decision, Maryland’s highest court commented that Maryland historically follows what is called the “civil law;” Maryland law mandates that people are not liable for the natural flow of water from their properties onto other owners’ properties. Eighty-one years later in its Baer decision of 1969, that same court steadfastly adhered to this principle when it expressed Maryland law as “Aqua currit et debet currere, ut currere solebat,” which means water flows, and should flow, as it used to flow. As the court articulated back in 1888, “it would be absurd to say that a man can be sued for damages caused by the operation of natural laws not put in motion by his own instrumentality.” Besides finding upper property owners not liable for runoff onto lower properties, Maryland’s historic civil law disallows property owners from redirecting waters that naturally flow onto their properties because such redirection interferes with the course of natural water drainage. Consequently, the civil law essentially views lower properties as servient to upper properties and subject to any natural water runoff.

Maryland’s civil law is in sharp contrast with the law of some other states, such as Massachusetts, which have adopted the “common enemy rule.” Under the common enemy rule, which has been modified in many jurisdictions, property owners are permitted to redirect natural water flow to prevent flooding on their own properties. A benefit the common enemy rule enjoys is the promotion of developing all types of property because the rule incentivizes developing all property, even low lying property, by allowing lower property owners to redirect natural water flow. Although beneficial in this regard, the common enemy rule adversely encourages property owners to engage in costly contests of water redirection. In contradistinction, Maryland’s civil law deters the development of lower properties, but avoids bitter and costly contests of water redirection.

Recognizing that strict adherence to the civil law sometimes results in harsh repercussions for lower property owners, Maryland’s highest court began mitigating the civil law in certain situations. In 1943, in the court’s Whitman ruling, the court followed New Hampshire’s precedent and adopted a “reasonableness of use doctrine” in an effort to alleviate the civil law’s undesirable quality of discouraging the improvement of lower properties. The court mandated that courts should find equitable resolutions allowing owners of lower property better use of their property if prohibiting the property owners from doing so severely reduces their property usage. As seen in its later Kidwell decision, Maryland’s highest court has consistently stressed that the reasonableness of use doctrine does not displace the civil law; instead, it allows flexibility in certain cases of undue hardship and allows the court to resolve matters based on equitable principles. In its 1982 Mark Downs, Inc. case, the Court of Special Appeals more elaborately described the reasonableness of use doctrine. The court stated that the reasonableness of use doctrine is predicated on fairness and is applied by courts on a case by case basis. The court noted that previous Maryland courts had applied it in cases where the upper property owner: (1) increased materially the quantity of water discharged on the lower land; (2) discharged water in artificial channels; (3) put conditions upon the lower land owner that would not exist if natural drainage conditions had not been disturbed; (4) discharged dirt, debris and pollutants onto the lower land; or (5) created a health hazard. Although the reasonableness of use doctrine sometimes prohibits the upper property owner from using land in certain fashions or permits lower property owners to redirect water when the upper property owner’s use of property causes excessive water runoff, the Mark Downs court stressed that it in no way affects any owner’s rights to the continuance of purely natural drainage. In this regard, Maryland appears to adhere to a strict application of the civil law and absolve upper property owners of liability. Thus, Maryland has reduced some of the harsh effects of the civil law by allowing lower property owners to redirect water in certain situations and prohibiting upper property owners from causing undue hardship via certain property uses, but it has not found upper property owners liable for flooding caused by natural runoff from their properties.

In conclusion, Maryland is a civil law state, not a common enemy state, and favors allowing water to drain and run in its natural course. Upper property owners are not liable for natural water courses and runoff that flood adjacent or nearby properties. Although historically lower property owners had no method of remediating such flooding, Maryland courts have become more permissive and apply equitable principles to determine if such property owners may redirect water flow in certain severe situations, or if upper property owners should be disallowed from certain property uses when they will result in undue hardship for lower property owners.

Opinions and conclusions in this post are solely those of the author unless otherwise indicated. The information contained in this blog is general in nature and is not offered and cannot be considered as legal advice for any particular situation. Any federal tax advice provided in this communication is not intended or written by the author to be used, and cannot be used by the recipient, for the purpose of avoiding penalties which may be imposed on the recipient by the IRS. Please contact the author if you would like to receive written advice in a format which complies with IRS rules and may be relied upon to avoid penalties.

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