Pennsylvania contains a wide variety of different surface waters across the state. Included in which is over 83,000 miles of streams and rivers, more than 4,000 lakes and ponds as well as 120 miles of coastal waters.
There is also groundwater, which is essential for working the land or building residences not part of a municipal water system. Either category can add value to many types of property.
There is a third water category called “diffuse surface water,” which is snow runoff, rain runoff, or flooding. Generally, property owners try to minimize diffuse surface water’s impact on the land and structures. This often involves moving it off your property as soon as possible while reducing its damaging effect on the land and structures.
Natural flow doctrine
Before altering the land to manage drainage, residents need to understand their rights and the rights of their neighbors. Property owners can let the water drain by following the natural flow doctrine. It means landowners living at a higher elevation have the right to foster or continue diffuse surface water’s natural downhill flow, which often means onto the neighbor’s land below them. Moreover, the neighbor can’t block or interfere with the natural flow onto their property.
Landowners can also gather diffuse surface water and use it for their purposes, such as creating a small reservoir. Still, they cannot lessen the flow to a neighbor with an established runoff need (such as irrigation).
They can also attempt to manage the flow to minimize the damage to their property, but they can’t increase or change the flow’s amount, speed, or direction. Upland owners who change the natural flow may be liable for the damages caused to properties at a lower altitude.
The common enemy rule
Suppose diffuse surface water is a known or widespread problem. In that case, all landowners have equal rights to protect and improve their property, even if it involves altering the natural flow and harming the neighbor’s property by enhancing your property. Still, the uphill owner’s actions must reasonably protect or manage their property. They must take due care when making improvements, and they can’t deliver the water by ditches or artificial channels. The common enemy rule does not apply in urban areas.
Land issues are always complicated
Neighbors working together against a common enemy can be helpful and even necessary. However, making changes to your property that changes elements of the neighbor’s property can lead to hard feelings and lawsuits over the damage caused. Since each dispute differs, state and local regulations are open to legal interpretation. A statute of limitations is also involved, so it is best to avoid a wait-and-see attitude. We can provide advice and assistance if you are having a problem with a neighbor’s runoff, or a neighbor is objecting to your runoff. Please call us at (610) 397-1820.