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Ely, Counselor at Law
Category: Real Estate Law
Satisfied Customers: 102584
Experience:  Qualified attorney in private practice including business, family, criminal, and real estate issues.
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Can a neighbor cut a ditch to drain water from his property

Customer Question

can a neighbor cut a ditch to drain water from his property to yours
Submitted: 2 years ago.
Category: Real Estate Law
Expert:  Ely replied 2 years ago.
Hello and welcome to JustAnswer. Please note: (A) This is general information and is not legal advice. No specific course of action is proposed herein, and no attorney-client relationship or privilege is formed by speaking to an expert on this site. By continuing, you confirm that you understand and agree to these terms; and (B) the site allows experts not participate in phone calls and I may or may not be able to participate in this feature. This depends. Please explain what you mean by "cut a ditch" - did they literally create a ditch to have water spill over to your property?My apologies for the wait. I am talking to more than one customer at a time sometimes, so it may take a few minutes for me to respond. Do not worry - I am not going anywhere. Thank you in advance for your patience.
Customer: replied 2 years ago.
My neighbor dug a ditch from his property to mine to drain water onto my property. Can a neighbor just use my property to serve himself like that
Expert:  Ely replied 2 years ago.
Thank you for your reply. Apologies, I was not online earlier.Louisiana follows the "civil law" of drainage, meaning that the owner of a lower parcel of land must accept the natural drainage from those parcels above his, and cannot alter the drainage pattern of his own land to increase the drainage flow onto parcels lower than his own.However, the "rule of reasonable use:" It is interesting to note that the court in Johnson v. White, supra, while alluding to the owner's right to fend off the surface water on his land as he pleased, in almost the same breath qualified the common-enemy rule by remarking that the owner was not privileged to discharge by artificial means upon the adjoining property large quantities of surface water. This exception is said to be a judicial recognition of another Latin maxim, sic utere tuo ut alienum non laedas.4 Norfolk & Western R.R. v. Carter, 91 Va. 587, 22 S.E. 517 (1895).Other courts, perhaps in recognition of the problems that have arisen by the application of the above two rules with all their modifications, have chosen a third doctrine. Instead of using the tort concepts as an overlay to mitigate the harsh results of the property law doctrine, they have instead created the standards for behavior entirely out of tort law, and abandoned the notions of servitude or absolute ownership.Thus we come to the third surface water doctrine, which is generally known as the "rule of reasonable use." Under this rule, the property owner's liability turns on a determination of the reasonableness of his actions. The issue of reasonableness is a question of fact to be determined in each case upon the consideration of all the relevant circumstances. This approach was first employed in Swett v. Cutts, 50 N.H. 439, 446 (1870).(Butler v. Bruno)Thus, they cannot do this, as while LA follows the civil rule that does allow the property owner to get rid of their water however they want to, under the "reasonable use" rule, this does not mean artificially draining unreasonable amounts of water unto the neighbor's property. The owner can then likely be liable for negligence and nuisance. A demand letter threatening a lawsuit may be required, and if they do not fix the issue, then one may file, asking for an injunction and/or costs to deal with the water, etc, as well as legal fees.I hope this helps and clarifies. Gentle Reminder: Use the SEND or REPLY button to keep chatting, or please RATE when finished. You may always ask follow ups at no charge after rating. Kindly rate my answer as one of TOP THREE FACES/STARS and then SUBMIT, as this is how I get credit for my time with you. Rating my answer the bottom two faces/stars or failing to submit the rating does not give me credit and reflects poorly on me, even if my answer is correct. I work very hard to formulate an informative and honest answer for you; please reciprocate my good faith.