Kelley, Polishan & Solfanelli recently won a jury verdict in a surface water negligence case in the Court of Common Pleas of Lackawanna County Pennsylvania.
The common enemy rule applies in surface water cases in Pennsylvania.
“[T]he common enemy rule [is] . . . the general principle that the law regards surface waters as a common enemy which every proprietor must fight to get rid of as best he may….
The owner of upper land has the right to have surface waters flowing on or over his land discharged through a natural water course onto the land of another. . .. He may make proper and profitable use of his land even though such use may result in some change in quality or quantity of the water flowing to the lower land. . . .
From those rules it is clear that only where the water is diverted from its natural channel or where it is unreasonably or unnecessarily changed in quantity or quality has the lower owner received an injury….
[T]he applicable law may be summarized as follows:
A landowner may not alter the natural flow of surface water on his property by concentrating it in an artificial channel and discharging it upon the lower land of his neighbor even though no more water is thereby collected than would naturally have flowed upon the neighbor’s land in a diffused condition.
One may make improvements upon his own land, especially in the development of urban property, grade it and build upon it, without liability for any incidental effect upon adjoining property even though there may result some additional flow of surface water thereon through a natural watercourse, but he may not, by artificial means, gather the water into a body and precipitate it on his neighbor’s property….”
Bretz v. Cent. Bucks Sch. Dist., 86 A.3d 306, 315-316 (Pa. Commw. 2014).
Under the common enemy rule, “an upper landowner is liable for the effects of surface water running off his property in two distinct circumstances:
(1) where the landowner has diverted the water from its natural channel by artificial means; or,
(2) where the landowner has unreasonably or unnecessarily increased the quantity or changed the quality of water discharged upon his neighbor.”
Bretz v. Cent. Bucks Sch. Dist. at 316.
Regarding the first of these two exceptions, “the determination of whether a landowner `has diverted the water from its natural channel by artificial means’ does not involve consideration of the reasonableness of the change in quantity or location of water flowing onto the lower land. Rather, to establish liability, a plaintiff need only show that a landowner collected and/or concentrated surface water from its natural channel through an artificial medium and that the water was discharged onto the plaintiff’s property in an increased volume or force, however, slight.” Id. at 316.
In other words, when determining whether a landowner has diverted water from its natural channel by artificial means, “the legal wrong lies in the artificial diversion or collection of water itself . . . without regard to the degree in which the volume or force is increased. A plaintiff need only show that a landowner collected and/or concentrated surface water from its natural channel through an artificial medium, and the water was discharged onto the plaintiff’s property in an increased volume or force, however slight.” Id. at 316.
Upper landowners do “have a right to have surface waters that run across [their] propert[ies] discharge[d] through a natural watercourse onto the [Plaintiffs’] property.” However, they do “not have a right to `turn the water from what would be a natural channel to an unnatural channel where the water would not normally flow’ or to `increase or change the concentration of the water by artificial means.’” In this regard, the questions of what is a “natural channel” and what is “reasonable” are issues to be determined by a jury.
Youst v. Keck’s Food Serv., 94 A.3d 1057, 1073-74 (Pa. Super. 2014); id. at 1068.
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