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mcarmel
Citizen
Username: Mcarmel
Post Number: 7
Registered: 7-2002
| | Posted on Saturday, April 22, 2006 - 11:19 pm: | 
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My rear yard neighbors yard is sloped towards mine. Soil and surface water runoff are causing severe erosion of my lawn and causing soil to be washed into my driveway. We are not good terms. Can anyone confirm whether the neighbor is obliged to remedy the problem and assume the expense? I spoke with Maplewood Engineering Department and was told this is a "civil matter". |
Projects Dude
Citizen
Username: Quakes
Post Number: 112
Registered: 3-2004
| | Posted on Sunday, April 23, 2006 - 8:26 am: |
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We ran into a similar situation awhile ago but had a more cordial outcome. The bottom line from the township is that as long as the up-hill party did not materially change his yard, or did anything that would redirect water flow, then it is very hard to fault the up-hill party. If for example he redirected a rain pipe towards you or undertook some significant earthwork like putting in a pool or attempted to horizontally level a steep slope and somehow the water pattern changed meaningfully then there may be an issue (although he should have gotten a town permit to do any major work and the town looks at water drainage issues, so if he does have a permit for it he's also somewhat protected).
Bottom line is that it's hard to fault someone uphill for water flowing downhill towards you unless he did something to alter the previous downhill flow of water in a major way. |
mcarmel
Citizen
Username: Mcarmel
Post Number: 9
Registered: 7-2002
| | Posted on Sunday, April 23, 2006 - 9:30 am: |
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I appreciate your response. But I am still wondering whether this an established application of state law or simply the adminstrative position of the township. Can you cite any NJ Statutes or court decisions that states a home owner is not responsible for their runoff? |
greenetree
Supporter
Username: Greenetree
Post Number: 7353
Registered: 5-2001
| | Posted on Sunday, April 23, 2006 - 9:52 am: |
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If you want more than neighbor-to-neighbor experience, you're probably going to want to talk to a lawyer. |
kmk
Supporter
Username: Kmk
Post Number: 1189
Registered: 5-2001
| | Posted on Sunday, April 23, 2006 - 10:14 am: |
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See my response to your post in the "Please Help" section. |
Michael K. Mc Kell
Citizen
Username: Greenerose
Post Number: 873
Registered: 9-2003
| | Posted on Sunday, April 23, 2006 - 10:15 am: |
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Just talk to them. |
Fabulouswalls
Citizen
Username: Fabulouswalls
Post Number: 52
Registered: 10-2005
| | Posted on Sunday, April 23, 2006 - 8:40 pm: |
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I have been told by several people that water runoff is not an issue unless your neighbor intentionally causes the water to drain on your property. I live on a steep hill and my neighbor's property has a pipe that drains onto her property and then down the slope onto my property. Nothing I can do about it. Water runs down hill. Period. You will have to find a way to fix the drainage on your property. |
Peter
Supporter
Username: Peter
Post Number: 241
Registered: 7-2004
| | Posted on Monday, April 24, 2006 - 11:49 am: |
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Here's an answer, courtesy of the New Jersey Board of Bar Examiners July 2004 examination. The examination is required of all lawyers or law school graduates who wish to practice law in New Jersey. The examiners publish model answers after the test for the benefit of those who didn't pass. This edition of the test included a question with facts similar to yours. Understand that the examination tests applicants on their general knowledge of legal principles. But I think the principles here probably apply to your situation. See the whole exam at http://www.njbarexams.org/exam/oldexamsjuly2004.htm.
QUESTION 3 (Property)
Anna, Betty, and Carolyn have each owned their homes on Pleasantdale Road for over ten years. Betty’s property sits between Anna’s and Carolyn’s properties.
This year, Anna decided to regrade her property and install bricks along the boundary between her property and Betty’s. As a result, the grading on Anna’s property has been raised by several inches, and the bricks form a barrier between the two properties. Unfortunately, this work causes Betty’s backyard to fill with large pools of water after every rainfall and large patches of ice in the colder weather. The yard takes several days to drain, and Betty’s use of the backyard has been severely curtailed. An engineer has advised Betty she will have to install a $20,000 drainage system to dispose of the surface water because the bricks have blocked the surface water’s flow.
Answer 3A
I. Water Collecting in Betty's Backyard
Traditionally, surface waters have always been considered a nuisance on land, and at common law a property owner was entitled to use any reasonable means to divert surface water from his property. This was known as the common enemy rule. In fact, an owner could take action even if it would result in harm to an adjacent parcel of land.
In this case, it is unlikely that our client will succeed on her claim because of the common enemy rule. Anna was entitled to divert surface water from her property and she has done so in a reasonable manner. The fact that Betty's yard takes several days to drain and it will cost $20,000 to install a drainage system are insignificant. Since the common enemy rule protects Anna's actions, Betty will not have a claim for the extra surface water on her land.
But here's another answer that doesn't seem to apply, as you haven't told us that the neighbors have done anything to change the way water runs off their land.
Anser 3B:
A. Anna's Brick Wall
Betty will likely be able to either enjoin Anna from keeping the brick wall or in the alternative obtain damages. The main issue is whether Anna's wall unreasonably harms Betty's enjoyment and use of her land.
At common law, surface water was treated as a "common enemy." Landowners are free to alter their property in order to divert surface water from their land. However, in doing so a land owner may not cause unreasonable harm to another's land.
In this case, Anna was entitled to regrade her property because she was the land owner. However, under the common enemy doctrine, her diversion of surface water could not unreasonably harm another's land. Under the facts presented here, Betty's land appears to suffer significant harm. This is demonstrated by the large pools of water after rain, and the large patches of ice in winter. Furthermore, the cost would be significant in order to remedy the situation, as demonstrated by the Engineer's $20,000 estimate to correct the problem. Because Betty's land is unreasonably burdened by Anna's diversion of water, she is entitled to relief.
A court may utilize its equity power to require removal of Anna's wall. However, such remedies are usually appropriate only when money damages are inadequate. Here, because the problem would be corrected for $20,000, money damages are an adequate remedy. Therefore, Anna will be liable for the $20,000 repair. Her only viable defense would be that the harm caused by the diverted water is not unreasonable. Given the event of flooding, Anna's defense would likely fail. Betty will recover $20,000 for her damages.
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bklyntonj
Citizen
Username: Bklyntonj
Post Number: 687
Registered: 7-2003
| | Posted on Monday, April 24, 2006 - 12:12 pm: |
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How about if your neighbor constantly has their sprinkler water your driveway and your car more than their grass? Are there any legal repercussions for that? |
greenetree
Supporter
Username: Greenetree
Post Number: 7369
Registered: 5-2001
| | Posted on Monday, April 24, 2006 - 12:29 pm: |
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Have you asked your neighbor to adjust their sprinkler? A $5 sprinkler from Drug Fair can be adjusted not to go in certain directions. I'd think it would be in the neighbor's best interest to not waste $$$ watering your driveway. Or, you could pour soap on your car & let it get clean. |
Todd Manana
Citizen
Username: T_manana
Post Number: 5
Registered: 9-2005
| | Posted on Monday, April 24, 2006 - 12:49 pm: |
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mccarmel, assuming the neighbor's yard hasn't changed since you moved in, maybe you can sue yourself for not having the foresight to anticipate water would flow downhill into your yard (chances are it was more than evident where the water has been flowing). I don't think the laws of physics have changed much in recent years. Water has typically flowed downhill quite awhile now.
Of course you can always pay to re-landscape the uphill neighbor's job in such a way as to divert water away from your trouble spots. Projects Dude's answer makes total sense. |
bklyntonj
Citizen
Username: Bklyntonj
Post Number: 688
Registered: 7-2003
| | Posted on Monday, April 24, 2006 - 2:16 pm: |
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mccarmel, sorry for the thread hijack.
Greentree, I did ask them to position it differently. Its just a matter of moving it so it doesn't rotate in my driveway. I'm trying not to believe its deliberate but... We get along great with the Mr of the house but the Mrs... |
greenetree
Supporter
Username: Greenetree
Post Number: 7374
Registered: 5-2001
| | Posted on Monday, April 24, 2006 - 2:19 pm: |
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You could always buy them the $5 Drug Fair one and innocently say "I thought you'd like this; it will save you from paying to water my driveway. See? You can push this thing right here and it won't come all the way over on to our side." |
bklyntonj
Citizen
Username: Bklyntonj
Post Number: 690
Registered: 7-2003
| | Posted on Monday, April 24, 2006 - 2:39 pm: |
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Good point Greentree.
That will also give me an idea on whether its deliberate by her response. |
Psychomom
Citizen
Username: Psychomom
Post Number: 115
Registered: 5-2005
| | Posted on Tuesday, April 25, 2006 - 4:33 pm: |
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My neighbor's drain pipe from the gutter is missing, as a result the rain comes down hard on my driveway and has eroded it terribly. We don't want to repave the drive way until this is addressed. What complicates things is that it is an absentee owner who rents the property out and the place has benn sold a number of times so that I have no idea who the property owner even is.
Would this be the same principle??? |
mcarmel
Citizen
Username: Mcarmel
Post Number: 10
Registered: 7-2002
| | Posted on Tuesday, April 25, 2006 - 10:20 pm: |
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Based on further research into this matter, it may not be entirely clear that a property owner has no responsibility whatsoever for water runoff from their land.
Effective April 1, 2006, municipal goverments were required by the Federal EPA Municipal Stormwater Regulation Program to implement a stormwater control ordinance. These rules were implemented in recognition of the fact that 60% of existing water pollution problems are caused by stormwater or other non-point sources. Part of these required ordinances must address existing development including so-called "solids and flotable controls".
In this particular instance with my rear yard neighbor, I offered to construct, entirely at my own expense, a Techo-Bloc retaining wall to hold back their soil. Due to the fact that there is an existing downslope wall on the adjacent rear yard neighbors property, shallow depth of my rear yard and aesthetics, the proposed wall is most appropriately built as an uphill extension of the existing wall, rather than build an offset extension on my side of the property line. My rear yard neighbor's position is that I am "taking" her property. If my neighbor refuses to allow me to build a wall, then I will have no choice but to install a surface drain which will carry her soil away and discharge it into the street and ultimately into the municipal stormwater system. This could very well be a violation of the new stormwater ordinace and the finger will be directly pointed at my neighbor, not me.
While my research is not yet exhausted and it may turn out that somehow soil erosion and contamination of stormwater runoff is not of concern, nevertheless, there is a distinct possibility that both my rear yard neighbor and the township may be in violation of the EPA requirements if both refuse to remedy the problem. I offer this information for others who find themselves in similar situations. |
Bob K
Supporter
Username: Bobk
Post Number: 11317
Registered: 5-2001
| | Posted on Wednesday, April 26, 2006 - 8:22 am: |
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A couple of points on your logic.
1. I believe I read right here on MOL that it is illegal to pipe runoff into the street and storm sewers.
2. You can remedy the situation with a retaining wall on your property. You don't need to use your neighbors property to do this. Aesthetics and the size of your yard don't enter into it.
3. The runoff seems to be an ongoing condition you probably should have investigated before buying. As one of the earlier posters indicated "water runs downhill". |
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