Q: I live on the edge of town and am having a problem with my neighbor. My neighbor put a rock wall around a good portion of his property. Although the wall may be aesthetically pleasing, when it rains, the effect of the wall is to cause the water to flow with greater force and amount onto my property. Do I have any type of recourse against my neighbor?


Q: I live on the edge of town and am having a problem with my neighbor. My neighbor put a rock wall around a good portion of his property. Although the wall may be aesthetically pleasing, when it rains, the effect of the wall is to cause the water to flow with greater force and amount onto my property. Do I have any type of recourse against my neighbor?

A: The problem you identify encompasses how to deal with “diffused surface water” or what is commonly known as runoff. Although water law has increased exponentially in importance in recent years due to water shortages worldwide, this still is perhaps one of the most prevalent issues that crops up: how to deal with unwanted or surplus water.
A number of theories have evolved regarding how to deal with this problem. The Common Enemy theory views water as a common enemy and posits that landowners have an “unqualified right to fend off surface waters as they see fit without being held accountable for the consequences to neighboring landowners.”
The Civil Law rule takes the opposite viewpoint by stating one cannot alter the flow of water in any nature that will increase the volume or velocity onto a neighbor’s property. Finally, some courts and commentators have endorsed an approach allowing for the reasonable diversion of water off of one’s property so long as it does not unreasonably harm surrounding landowners.
To answer the above question and to determine which theory to apply, in Kansas it depends on whether you live within city limits or in the country. In the city, the Common Enemy approach generally is applied while in rural areas the Civil Law rule is in force. However, the law distinguishes between “surface waters” and “watercourses.”
Surface waters include items such as rainfall and melting snow and are drained over the surface of the ground and evaporate. They have a temporary existence and, thus, are incapable of being identified as a body of water.
Watercourses are streams having a distinct channel, banks and a bed and can be intermittent in flow as long as the definition still is met. In both cities and rural areas, one generally cannot take action to alter the flow of watercourses.
In the city, the law further distinguishes between mere surface waters and “floodwaters.” Floodwaters have been defined by the courts as “overflow waters which continue to flow in the same direction while outside the watercourse’s banks and return thereto upon subsidence of the flood are part of the running stream.” In other words, flooding is when a creek or river runs over its banks. Where the overflow ceases to “be a part of a general current following the channel” it becomes surface water.
In a city, regarding surface waters, the common enemy rule applies and a landowner may take steps to “improve property, even raise and lower it, and build in a manner ordinarily used” even if such action diverts water onto surrounding properties. One may even draw surface water from adjoining land which otherwise would remain there so long as no trespass occurs.
With floodwaters, a city resident does not have an unfettered right to divert such waters and the common enemy rule is inapplicable. Rather, one may not take action to force floodwaters onto a neighbor’s property.
In contrast to the rules applicable in the city, different laws apply in the country. In rural areas, no distinction is made between floodwaters and surface waters, and the civil law rule has been adopted by statute. Thus, landowners generally cannot take action that will increase the volume and velocity of water that flows onto a neighbor’s property.
With these rules in mind, the approach you take is completely dependent on the type of water involved and whether you live within a city or in the country. Assuming you have a viable legal theory against your neighbor, if the wall already is completed you could file for a mandatory injunction asking that a court order its removal.
In contrast, if portions of the wall are incomplete, you could seek preventative injunctive action. Different legal principles apply depending on what type of injunctive action you seek.
Of course, the law aside, it would be good to talk with your neighbor and determine if you can resolve the situation together. Hopefully, you are able to arrive at a mutual solution. However, if you are at an impasse with your neighbor and legal action is needed, a lawyer can help you to navigate the complexity inherent in this area.
Feel fee to submit questions or comments to dave@aplawpa.com or to the Kansan at news@thekansan.com. This column is not intended to serve as legal advice, and you are encouraged to contact a qualified attorney regarding your unique situation.