· Surface waters: “those casual waters which accumulate from natural sources and which have not yet evaporated, been absorbed into the earth, or found their way into a stream or lake. The term does not comprehend waters impounded in artificial ponds, tanks or water mains.” Taylor v. Conti, 149 Conn. 174, 178, 177 A.2d 670 (1962).
· “ ‘Surface water’ is a term which has been defined or used variously. A few of the definitions embody statements which would imply that it is a term appropriate to be applied to all fresh water upon the surface of the earth, not ponded, which is not that of a watercourse. Other authorities, while giving a definition which affords no logical foundation for such a broad use of the term, act upon the assumption that all nonponded fresh water is either surface or stream water. The better and more generally stated definitions, and those which permit a consistent application productive of just results, confine surface water within more definite limits.” Thompson v. New Haven Water Co., 86 Conn. 597, 603, 86 A. 585 (1913).
· “For instance, the Amer. & Eng. Ency. of Law (Vol. 30, p. 323) says: ‘Surface water may be defined as waters on the surface of the ground which are of a casual or vagrant character, following no definite course and having no substantial or permanent existence, and which are lost by being diffused over the surface of the ground, through percolation into the soil or evaporation.’ . . . . A considerable number of our cases have dealt with surface water. In no one of them, however, was an attempt made, and perhaps wisely, to formulate a comprehensive definition. But in all of them the source was rain or snow fall or springs. In nearly every one the condition was one which grew out of the natural drainage of fallen moisture. As to the form which the water assumed upon the surface of the ground, it was not in any case water collected or flowing in mass, but always water scattered and diffused over the earth as conditions of the weather and the confirmation and character of the ground dictated, and standing still or moving aimlessly along until it should become dissipated by percolation or evaporation, or lost in the current of a stream.” Ibid., 603-604.
§ 1. Between private landowners................................................................................................... 3
§ 2. From public roads or ways........................................................................................................ 8
Table 1 Cause of Action.............................................................................................................................. 11
Figures
Figure 1 Form 104.6......................................................................................................................................... 13
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SCOPE: |
· Bibliographic resources relating to actions against private property owners who alter flow of surface water causing injury to owners of adjacent property. |
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TREATED ELSEWHERE:
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DEFINITION:
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· Common enemy doctrine: “briefly stated, is that the owner of land may repel or divert surface water from its land on to that of another.” Page Motor Co. v. Baker, 182 Conn. 484, 487, 438 A.2d 739 (1980).
· Rule of reasonable use: “the landowner, in dealing with surface water, is entitled to take only such steps as are reasonable, in light of all the circumstances of relative advantage to the actor and disadvantage to the adjoining landowners, as well as social utility.” Page Motor Co. v. Baker, 182 Conn. 484, 488-489, 438 A.2d 739 (1980).
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FORMS:
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· 2 Conn. Practice Book (1997). Form 104.6. Injunction against interference with flow of surface water. See Figure 1
· 24B Am Jur Pleading and Practice Forms Waters (1999). § 82. Complaint, petition, or declaration—For damages and injunctive relief—Unlawful diversion of surface water
· Cause Of Action For Damage Caused By Change In Flow Of Surface Water, 16 COA 675 (1988) § 37. Sample complaint § 38. Sample complaint for damages and injunctive relief due to obstruction and diversion of stream by levee
· Proof Of Landowner's Unreasonable Interference With Surface Water Drainage, 87 Am Jur Trials (2003). Model pleadings
§ 29. Complaint by lower landowner seeking relief for upper owner's acceleration and increase in volume of surface waters discharged onto lower land
§ 30. Complaint by upper landowner seeking relief from lower landowner's obstruction of natural drainage by erection of earthen embankment |
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JURY INSTRUCTIONS: |
· Proof Of Landowner's Unreasonable Interference With Surface Water Drainage, 87 Am Jur Trials 423 (2003). · Model Jury Instructions § 46. Rule of reasonable use § 47. Liability for unreasonable alteration of surface water drainage—Augmenting natural drainage § 48. Determination of "unreasonableness" of Defendant's conduct as question of fact
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CASES: |
· Agnello v. Urbano, no. CV000273689S, 2002 WL 31501032 (Conn. Super. 2002). “The court finds that the defendants' actions violated the second branch of the Tide Water test. The defendants improved their land and caused the water to impermissibly flow upon the plaintiffs' property.”
· Walton v. New Hartford, 223 Conn. 155, 162, 612 A.2d 1153 (1992). “In their appeal, the Parsons claim that the trial court improperly concluded that the plaintiffs had granted to the Parsons a license, rather than an easement, to use the plaintiffs' property. We disagree.”
· Ferri v. Pyramid Construction Company, 186 Conn. 682, 686, 443 A.2d 478 (1982). “In Page Motor, this court substituted the reasonable use doctrine for the first branch of the rule of Tide Water Oil. We announced that a repelling landowner would no longer enjoy immunity in dealing with surface water. Instead, we held (pp. 488-89) that, in dealing with surface water, the landowner would be ‘entitled to take only such steps as are reasonable, in light of all the circumstances of relative advantage to the actor and disadvantage to the adjoining landowners, as well as social utility.’ In increasing the possible liability of a landowner repelling surface waters, we did not address, and certainly did not diminish, the existing liability of a landowner diverting surface water under the second branch of the rule of Tide Water Oil.”
· Page Motor Co. v. Baker, 182 Conn. 484, 488, 438 A.2d 739 (1980). “We now feel that the inflexibility of the old rule [common enemy doctrine], as correctly reported by the trial referee, should be modified so as to allow some reasonable latitude. By way of dictum, we are now inclined to adopt what some jurisdictions have termed the reasonableness of use rule.”
· Falco v. James Peter Associates, Inc., 165 Conn. 442, 446, 335 A.2d 301 (1973). “Moreover, one who maintains such an alteration in his land [causing an increase in volume of surface water which flows onto the land of others], though it was created by his predecessor in title, may, after a request to remove it, be held liable for the continuing injury.”
· Taylor v. Conti, 149 Conn. 174, 177, 177 A.2d 670 (1962). “A landowner cannot use or improve his land so as to increase the volume of the surface waters which flow from it onto the land of others, nor can he discharge surface waters from his land onto the land of others in a different course from their natural flow, if by so doing he causes substantial damage.”
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WEST KEY NUMBERS: |
· Waters & Water Courses Surface Waters #115. What are surface waters #116. Rights and liabilities in general #117. Rights to surface water #118. Obstructions or repulsion of flow #119. Drainage or discharge #120. Pollution #121. Rain water and eavesdrip #122. Actions #123. _____ . Rights of action and defenses #124. _____ . Injunction #125. _____ . Damages #126. _____ . Proceedings and review
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DIGESTS:
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· Dowling’s Digest: Waters § 5. Surface water
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ENCYCLOPEDIAS: |
· 1 Am. Jur. 2d Adjoining Landowners (1994). § 33. Water, Snow or Ice Precipitating Onto Adjoining Premises
· 93 C.J.S. Waters (2001). Surface waters §§ 254-258. In general § 254. What are surface waters § 255. Rights, duties and liabilities in general § 257. Rainwater and eavesdrip § 258. Liability for drainage §§ 259-267. Natural flow or drainage and obstructions thereof § 259. Easement for surface water to flow naturally § 260. Urban property § 261. Obstruction of natural drainways or depressions §§ 268-276. Artificial drainage and obstruction thereof §§ 277-281. Creation and transfer of easement or right of drain §§ 282-296. Action for damages
· Proof Of Landowner's Unreasonable Interference With Surface Water Drainage, 87 Am Jur Trials 423 (2003).
I. Legal background II. Rules governing interference with surface water drainage III. Application of rules to particular forms of interference IV. Defenses V. Damages and other relieves VI. Elements of proof VII. Model pleadings VIII. Proof of upper landowner's unreasonable change in surface water drainage IX. Model jury instructions
· Unreasonable Alteration Of Surface Drainage, 6 POF2d 301 (1975). · Cause Of Action For Damage Caused By Change In Flow Of Surface Water, 16 COA 675 (1988). · Francis M. Dougherty, Annotation, Extinguishment By Prescription Of Natural Servitude For Drainage Of Surface Waters, 42 ALR4th 462 (1985). · Janet Fairchild, Annotation, Modern Status Of Rules Governing Interference With Drainage Of Surface Waters, 93 ALR3d 1193 (1979). |
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TEXTS & TREATISES:
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· Joel M. Kaye et al., Connecticut Practice Series, Practice Book Annotated (1996). Authors' Comments following Form 104.6
· Douglass B.Wright et al., Connecticut Law of Torts (3rd ed. 1991). § 17. Connecticut decisions on trespass
· 2 James H.Backman and David A. Thomas, A Practical Guide to Disputes Between Adjoining Landowners – Easements (2001). § 13.04. Neighboring landowner disputes arising from uncontrolled surface water on private property
· A. Dan Tarlock, Law of Water Rights and Resources (2001). § 3:12. Waters subject to riparian rights—Surface waters § 3:13. —Diffused surface waters § 3:14. — — Ownership of diffused surface waters
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LAW REVIEWS: |
· Patricia A. Ayars, Comments, The Flow of Surface Water Law in Connecticut, 14 Connecticut Law Review 601 (1982). · Clifford Davis, The Law Of Diffused Surface Water In Eastern Riparian States, 6 Connecticut Law Review 227 (1973‑74).
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COMPILER: |
Lawrence Cheeseman, Supervising Law Librarian, Connecticut Judicial Department, Law Library at Middletown, One Court Street, Middletown, CT 06457. (860) 343‑6560.
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SCOPE: |
· Bibliographic resources relating to actions against the State or municipalities for damage caused by drainage of surface waters |
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TREATED ELSEWHERE:
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DEFINITIONS: |
· Hutchinson v. Town of Andover, 49 Conn. App. 781, 786, 715 A.2d 831 (1998). “The common-law rule provides that a person cannot gather surface water on his or her own land in an artificial volume and turn it onto a neighbor's land in an increased volume to the neighbor's injury. This rule also applies to governmental agencies engaged in highway maintenance. [General Statutes of Connecticut] Section 13a-138 (a) limits the liability for such water diversion only where the party charged with maintaining the highway complies with the statute by draining the water in a manner that causes the least damage to the affected land.”
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STATUTES:
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· Conn. Gen. Stat. (2003). Chapter 238. Highway construction and maintenance § 13a-138. Highways may be drained into private lands § 13a-138a. Limitation on actions for drainage damage
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FORMS: |
· 2 Conn. Practice Book (1997). Form 104.6. Injunction against interference with flow of surface water. See Figure 1
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CASES: |
· Hutchinson v. Town of Andover, 49 Conn. App. 781, 785, 715 A.2d 831 (1998). “Our Supreme Court has said that the statute ‘permits drains to be built only when necessary, and if there is a reasonable alternative course open, that course must be taken.’ (Emphasis added.) Postemski v. Watrous, 151 Conn. 183, 188, 195 A.2d 425 (1963). Here, there is no dispute that it is necessary for the town to divert some water onto the plaintiffs' land and the only issue is which system will cause the least damage to the land.” · Hillman v. Greenwich, 217 Conn. 520, 521-522, 587 A.2d 99 (1991). “The plaintiff, Howard B. Hillman, brought an action for damages and injunctive relief against the defendant, the town of Greenwich, alleging that unlawful and unreasonable drainage of surface storm water by the defendant had damaged the plaintiffs property.”
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WEST KEY NUMBERS: |
· Highways #120. Drainage (.5). In general (1). Power and duty as to drainage (2). Rights and remedies of abutting owners in general (3). Injunctions (4). Damages and actions thereof · Municipal Corporations Torts. Defects or obstructions in sewers, drains, and water courses # 845. Actions for injuries
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ENCYCLOPEDIAS: |
· 39 Am. Jur. 2d Highways, streets and bridges (1999). § 123. Interference with surface waters § 124. Preventing flow from adjoining land § 125. Discharge of collected surface water
· 93 C.J.S. Waters (2001). Surface waters § 265. Construction and maintenance of railroads. Generally § 266. Crossing a gully, ravine, or natural depression § 267. Effect of grant of right-of-way and condemnation § 275. Artificial drainage and obstruction thereof. By railroad companies · Proof Of Landowner's Unreasonable Interference With Surface Water Drainage, 87 Am Jur Trials 423 (2003).
· Governmental Liability For Injury To Landowner's Property From Road Construction Activities On Neighboring Land, 65 POF3d 311 (2002).
· Recovery Under Property Insurance For Loss Due To Surface Water, Sewer Backup And Flood, 48 POF3d 419 (1998). · Unreasonable Alteration Of Surface Drainage, 6 POF2d 301 (1975). · Cause Of Action For Damage Caused By Change In Flow Of Surface Water, 16 COA 675 (1988). § 2. Drainage rights and liabilities, generally —Public works § 5. Obstruction of drainage
· Janet Fairchild, Annotation, Modern Status Of Rules Governing Interference With Drainage Of Surface Waters, 93 ALR3d 1193 (1979). |
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TEXTS & TREATISES:
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· Joel M. Kaye et al., Connecticut Practice Series, Practice Book Annotated (1996). Authors' Comments following Form 104.6 · 18A Eugene McQuillin, The Law of Municipal Corporations (1993). Chapter 53. Municipal liability for torts § 53.140. Surface water. In general § 53.141. Injuries from public improvements § 53.142. “Negligence” § 53.143. Constitutional and statutory provisions § 53.144. Casting surface water in body on private land
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LAW REVIEWS: |
· Patricia A. Ayars, Comments, The Flow of Surface Water Law in Connecticut, 14 Connecticut Law Review 601 (1982). · Clifford Davis, The Law Of Diffused Surface Water In Eastern Riparian States, 6 Connecticut Law Review 227 (1973‑74).
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COMPILER: |
Lawrence Cheeseman, Supervising Law Librarian, Connecticut Judicial Department, Law Library at Middletown, One Court Street, Middletown, CT 06457. (860) 343‑6560.
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Cause of action for damage causedby change in flow of surface water 16 COA 675 (1988)
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Prima Facie Case
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§ 5 |
Elements, generally |
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§ 6 |
—Under particular theories of liability |
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§ 7 |
Duty to control flow of surface water |
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§ 8 |
Breach of duty |
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§ 9 |
—Particular circumstances |
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§ 10 |
Harm to plaintiff or plaintiff’s property |
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§ 11 |
Proximate cause |
DEFENSES
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§ 12 |
Absence of duty |
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§ 13 |
—Drainage easement, license, or servitude |
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§ 14 |
Absence of breach |
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§ 15 |
—Compliance with statute or governmental directive |
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§ 16 |
Intervening cause of harm |
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§ 17 |
—Plaintiff’s failure to take precautions to prevent harm |
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§ 18 |
—Act of God or other natural occurrence |
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§ 19 |
Failure to seek timely relief |
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§ 20 |
Prior adjudication |
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§ 21 |
Other defenses |
PARTIES
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§ 22 |
Parties who may bring action |
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§ 23 |
Persons potentially liable [Cont’d] |
Practice and Procedure
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§ 24 |
Single or multiple cause of action |
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§ 25 |
Jurisdiction |
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§ 26 |
Time for bringing action |
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§ 27 |
Pleadings |
PROOF
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§ 28 |
Plaintiff’s proof |
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§ 29 |
—Type and scope of equitable relief |
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§ 30 |
Defendant’s proof
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Remedies and recovery
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§ 31 |
Equitable relief |
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§ 32 |
—Type and scope of equitable relief |
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§ 33 |
Compensatory damages |
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§ 34 |
—Measure of damages |
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§ 35 |
Punitive damages
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FORM 104.6
Injunction Against Interference with Flow of Surface Waters
COMPLAINT
1. The plaintiff is the owner of a certain piece or parcel of land, with the appurtenances thereto, situated in the city of , and bounded and described as follows: (here insert description). On the premises he has a large garage in which he stores and repairs automobiles.
2. The defendants are the owners of a contiguous piece of land which abuts the above mentioned property of the plaintiff on the south, which premises are described as follows: (here insert description).
3. Abutting the above described premises of both parties to the east is and for a long time has been a railroad right of way on which are constructed tracks upon an embankment higher than the lands of the parties.
4. The natural slope of land across the premises of both parties is
from the northwest to the southeast.
5. Prior to the construction of the railroad a small stream or watercourse ran across the land of the plaintiff and away to the east over the land now occupied by the railroad but by reason of the building of the embankment it was deflected to the west and has ever since run in a definitely defined and marked course across the land of the defendant.
6. The change was made more than fifteen years before the occurrences hereafter stated and ever since the plaintiff has enjoyed and asserted the right to have the water in this watercourse pass off over the defendant’s land, and the use of the watercourse over the defendant’s land for that purpose has been open, continuous, uninterrupted, with the knowledge and acquiescence of the defendant and his predecessors in title and adversely to him and them.
7. Beginning on or about (date) the defendant has filled in the land on his premises for the entire distance it abuts upon the land of the plaintiff until it is higher than the land of the plaintiff, and has filled in the channel of the watercourse and wholly obstructed it.
8. As a further result of the filling in of his premises by the defendant, he has caused the surface water which falls upon it, instead of flowing away to the south as it normally would, to flow northerly upon the land of the plaintiff, and thereby has greatly increased the volume of surface water coming upon the plaintiff’s premises, and has so filled his land as to cause the surface water coming upon the plaintiff’s premises to flow thereon not in a natural diffused manner but in several well defined channels, which bring upon the plaintiff’s premises dirt and silt and wash channels through it.
9. As a result of the filling of his land by the defendant the waters coming to the plaintiff’s premises from the north and surface water falling thereon and on the defendant’s premises accumulate upon the plaintiff’s premises and remain standing thereon to a considerable depth and create a nuisance and a condition dangerous to the maintenance of the plaintiff’s structures now on the premises, and these conditions and the deposits of dirt and the channels on the plaintiff’s land caused by defendant’s acts seriously impair the plaintiff’s beneficial use of his premises.
The plaintiff claims
1. An injunction requiring the defendant to reopen the channel of the watercourse and against placing obstructions therein.
2. That the defendant be enjoined from interfering with the natural flow of the surface waters coming onto the plaintiff’s land.
(P.B. 1963, Form 349.)