If a neighbor's water runoff damages your property, are they liable in NY?

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Your neighbor decides to blacktop a driveway once covered with grass that acted as a sponge, sopping up rainwater. But after a deluge, water comes rushing into your basement.
Can you sue your neighbor? Sure. But you may not win.
What are NY's laws on water runoff?
New York State law on the topic has evolved through the years.
In the old days, under English common law, water was once viewed as a common enemy. And as with any enemy, homeowners had the right to defend themselves by, for instance, digging ditches to redirect the natural flow of water away from their property even if water might flow onto someone else's property.
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But development creates more conflicts and courts were increasingly being asked to act as a referee. Here's how Darrell W. Harp, the former chief counsel to the state Department of Transportation, described it in a 2015 report for the Cornell Local Roads Program, New York State Local Technical Assistance Program Center:
'The 'common-enemy rule' was generally modified so that a lower landowner was not normally entitled to cast back surface waters by damming a natural watercourse, and an upland owner was not entitled to artificially collect surface waters and discharge them in a mass upon the land below to its damage (e.g., by piping or draining into ditches so that surface waters released on lower land caused erosion or flooding).'
Simply put, the law changed through the years to consider the damage that altering the natural flow of water could have on a neighbor's property.
A 'reasonable' standard on where you're sending water
'The courts pretty much said let's be reasonable about this,' said David Orr, who heads the Cornell Local Roads Program and fields these sorts of questions from highway departments and homeowners.
That led to the "reasonable use" standard. Basically, you should not knowingly make decisions on your property that'll cause water to flow onto your neighbor's property.
Here's Orr's take on what's reasonable and what's not:
'If I've got a piece of property and I want to put a road to go up to the back half of it, do I have a right to do that. Well, yeah, you do. Do I have a right to cross a stream? Yeah, but I might need to put a culvert in. In fact, there may be a requirement from an environmental standpoint… If I create a gulley that washes into somebody's property, no. If I back water up onto somebody else's property or keep the water down? No, that's not good either. That's the reasonableness factor.'
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Groundbreaking decision in water runoff dispute
The leading New York case on the topic — Kossoff v. Rathgeb-Walsh — came out of the village of Pelham in Westchester County in 1958.
In that case a landowner put a gas station on his property, causing water to seep into a neighbor's basement.
The lot was raised and blacktopped, which sped the flow of water onto a neighbor's property, damaging property in the basement, according to the decision.
The gas station owner did not install pipes, drains or ditches and acted in good faith to improve his property. The lawsuit was tossed.
As Harp writes: 'The thing to remember is that reasonable blacktopping, paving, grading, improvements, or construction done in good faith that disturbs the natural flow of surface water drainage to the damage of a lower owner is not actionable unless the drainage is artificially caused to be collected in a mass, as in a pipe, ditch or drain.'
Of course, facts matter. Some cases are closer calls than others. Best to consult an attorney.
Thomas C. Zambito covers energy, transportation and economic growth for the USA Today Network's New York State team. He's won dozens of state and national writing awards from the Associated Press, Investigative Reporters and Editors, the Deadline Club and others during a decades-long career that's included stops at the New York Daily News, The Star-Ledger of Newark and The Record of Hackensack. He can be reached at [e-mail].
This article originally appeared on Rockland/Westchester Journal News: 'Common-enemy rule': Can homeowners sue neighbors for water runoff damage?
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