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Ely
Ely, Counselor at Law
Category: Legal
Satisfied Customers: 88299
Experience:  Private practice with focus on family, criminal, PI, consumer protection, and business consultation.
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My wife and I are currently having a problem with a neighbor

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My wife and I are currently having a problem with a neighbor lady who is flooding our yard with water on a regular basis. Her property boders ours on the west and her lot is uphill or elevated above ours. She runs her water hose all day to water her trees and plants near the property line. The water is excessive and I have attempted to speak with her and point out that the water running down into our yard is not doing her trees any good and will damage my landscaping eventually. This was last summer and she continued to do it after my plea with her. Finally at the end of last summer, after the lady again made a mudhole out of our back yard, my wife went to her residence to ask her to shut off the water. This lady would not answer the door despite loud knocking by my wife. Failing in her attempt to speak with this woman, my wife then turned off her water and came home. A few minutes later, a policeman came to her door and advised us that this woman had filed a criminal tresspass complaint.

Fast forward to the present. This woman has now planted a barberry hedge right along our property line and has begun to water the hedge. We have ignored her, but yesterday, she called out to my wife and asked why we do not bag our grass. She said that the grass goes into her newly planted hedge row and causes grass to grow! She also informed my wife that she could do anything she wanted in her yard and there was nothing we can do about it. My wife told her that we would call the poolice to shut off the water when it began to pool in our yard. She replied that the police couuld not shut her water off because it was private property. It looks like we are in for a long hot summer. I have asked a contractor for an estimate for a French drain, but that will not solve the problem since water will be running down the part of the yard that is on the slope and damaging the landscaping located there. This woman is obviously intent on a confrontation over this and I beleive she planted the hedge to provike us. I have atttempted to get legal advice, but the attornies I have attempted to contact never return my calls. I need to know my rights any possible recourse options. I hope you can help. I live in Lawrence, Kansas. Thanks.
Submitted: 1 year ago.
Category: Legal
Expert:  Ely replied 1 year ago.
Hello friend. My name is XXXXX XXXXX welcome to JustAnswer. Please note: (1) this is general information only, not legal advice, and, (2) there may be a slight delay between your follow ups and my replies.

I am sorry for your situation. Unfortunately, this happens more often than you think. The good news is that you do have relief. The bad news is that you may have to go to civil court to get it.

In this situation, the police are not going to become involved because it is more of a civil matter. They cannot tell her to shut off the water. The Court can, however. Way back in the 1800s the Court already had this established under Hazeltine v. Edgmand, 35 Kan. 202, 213, 10 Pac. 544 (1886): (holding that a landowner is liable if he or she sheds water to a neighbor's property through neglect, thereby causing damage).

This has been included in our modern laws as well. See Modern Status of Rules Governing Interference with Drainage of Surface Waters, 93 A.L.R.3d 1193, § 10(a).

In sum, someone in your situation may have to bring a SUIT before the civil court, seeking for her to stop doing this.

To sue in a state court, one needs to have a "cause of action." There are numerous causes of action, such as "breach of contract," "negligence," "fraud," "unjust enrichment," etc., as well as causes of action rooted in statutory law. Every state has their own although they are very similar to each other in every state. Every cause of action has its own elements, and each element has to be satisfied for a cause of action to be successful in court.

Here, this would be two actions: negligence and nuisance.

To recover for negligence, the plaintiff must prove the existence of a duty, breach of that duty, injury, and a causal connection between the duty breached and the injury suffered. McGee v. Chalfant, 248 Kan. 434, 437, 806 P.2d 980 (1991). Here, she arguably has the duty under common law to exercise reasonable caution and did not.

Nuisance is the unreasonable interference with the use and enjoyment of the land. Williams v. Amoco Production Co., 734 P. 2d 1113 - Kan: Supreme Court 1987.

Very often, a CEASE AND DESIST letter from an attorney would do the trick even without having to litigate since a letter from an attorney carries more gravitas and implies that action is imminent, wherein she may not see you as too much of a threat without counsel. Such a letter is normally $100 or so. May I recommend the Kansas Bar referral program - here. The attorneys are vetted and qualified. You should be able to find an attorney you are confident with and whom you can trust, and who is available ASAP.

I hope this helps and clarifies. Best of luck.

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Ely, Counselor at Law
Category: Legal
Satisfied Customers: 88299
Experience: Private practice with focus on family, criminal, PI, consumer protection, and business consultation.
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