As land use attorneys, we get many questions regarding water rights. These questions typically involve lake or river access and navigation. These questions generally fall under the category of riparian rights. One water question that does not fall neatly into the riparian category is the question of drainage. For example, how much water can your neighbor divert onto your property? Is there anything you can do to stop water from draining into your yard? While each case is unique, Michigan courts have established a general set of principles that decide how these types of questions are answered.
In Wiggins v. City of Burton, 291 Mich. App. 532 (2011), the Michigan Court of Appeals addressed the issue of surface-water flow. In Wiggins, the Wiggins family purchased a lot adjacent to the Mahlers and the Heckmans. The Wiggins lot was part of a newly-constructed subdivision and was encumbered with a “private storm detention” easement.
The Mahlers and Heckmans complained that the construction of the new subdivision caused an increase of storm water drainage onto their properties. In particular, Mr. Heckman complained to the City of Burton for years regarding the drainage onto his property. Eventually, the City approved and funded a “relief drain” that consisted of a large pipe that would divert drainage from the Mahler and Heckman lots onto the storm detention easement on the Wiggins lot. The result of this was to deposit immense amounts of drainage into the Wiggins’ backyard. The Wiggins lot was essentially turned into a “retention pond.”
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Unsurprisingly, the Wiggins sued the Mahlers, the Heckmans, and the City of Burton and asserted a number of claims. Specifically, the Wiggins asked the court to declare that the increased flow of drainage onto their property constituted a trespass. The circuit court dismissed the Wiggins’ claims, and the Wiggins’ appealed.
The Court of Appeals reversed the circuit court. In addressing the drainage issue, the court affirmed a number of vital principles. First, “[i]t has been ‘the settled law of this State’ for more than a century that the natural flow of surface waters from the upper, dominant estate forms a ‘natural servitude’ that encumbers the lower, servient estate. The owner of the lower, servient estate must bear this natural servitude, and is bound by law to accept the natural flow of surface waters from the upper, dominant estate.” In other words, the owner of a lot which naturally receives the drainage from an adjacent lot generally has no recourse against her neighbor concerning the drainage.
However, the court also stated “[i]t is similarly well settled…that the owner of the upper estate has no right to increase the amount of water that would otherwise naturally flow onto the lower estate.” The court went on, “[s]tated another way, the owner of the dominant estate may not, by changing conditions on his land, put a greater burden on the servient estate by increasing and concentrating the volume and velocity of the surface water.”
Applying these principles, the court confirmed that the Wiggins lot was “required to accept the surface-water runoff that naturally flows to it from the neighboring dominant estates.” However, the court also noted that the City, the Mahlers, and the Heckmans had no right to increase the natural amount of runoff onto the Wiggins’ lot.
The court found that there was not a clear answer as to whether the new drain pipe had materially increased the amount of runoff beyond what was historical and natural. Therefore, the court reversed the circuit court decision. The case was remanded for a determination as to the natural amount of runoff which should be flowing to the Wiggins lot. If the drain had increased that amount of runoff, the court concluded that a trespass would have been committed.
Issues concerning runoff and drainage between neighbors are common but are not well understood. The attorneys at Dalton and Tomich specialize in land use issues. We represent individuals, business entities, and religious institutions. If you have questions regarding a potential runoff or drainage issue, please do not hesitate to contact us. We would be happy to speak with you.
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