Water, Water Everywhere…Massachusetts ‘Common Enemy Rule’ to ‘Reasonable Use Doctrine’
It’s a fact of life that surface water such as rain and snowmelt tends to move from higher elevations to lower elevations. Construction often changes the flow of surface water on a property, causing an increase in runoff which may affect neighboring lots. Disputes often arise between property owners when excessive runoff flows from one lot onto another. Do you know what rights you may have if a neighbor’s actions have caused increased surface water to flow onto your property?
For over 100 years, Massachusetts Courts followed the colorfully-named “Common Enemy Rule”, which protected property owners who attempted to remove or divert surface water from their land. The Common Enemy Doctrine held that, with few exceptions, a property owner would not be liable for damages to adjoining property resulting from activities taken on his own property which affected the flow of surface water.
The Common Enemy Rule began to change in 1979 and was replaced by the “reasonable use” doctrine.” Under the reasonable use doctrine, Courts now hold that a landowner is legally privileged to make a reasonable use of her property, even though doing so may change the flow of surface water and cause some harm to nearby properties. A land owner who changes surface water flow will only be liable when harmful interference with surface water flow is unreasonable.
In the last few decades the Courts have not provided much guidance on what actions taken by landowners are reasonable and which are not. In making the determination, courts will generally consider all relevant circumstances including the amount of harm caused by the water flow, the foreseeability of the harm which results, the motivation for changing the water flow, and any other relevant factors. Please contact Attorney Michael Doherty or Edward Cannon attorneys at Doherty, Dugan, Cannon, Raymond & Weil, P.C. if you would like to discuss your surface water runoff question.
© 2020 Doherty, Dugan, Cannon, Raymond & Weil, P.C.
Article by Attorney Michael P. Doherty
Attorney Michael P. Doherty represents organizations and individuals in business, succession planning and litigation matters, and also assists clients with estate planning, wills and trusts.
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Franklin, MA 02038