LAWS OF EVE - Watercourses

The devastation which Tropical Storm Nicole has left in its wake has created fertile ground for the subject of this week's article. Many persons have seen water flow through previously uncharted courses, made ponds in their living rooms and backyards, leaving them to consider the site for the next retaining wall or drain. Some wonder whether they have the right to carry out that work, and this is what we will discuss within the context of the common law.

Perhaps one of the problems which arises most frequently between neighbours is drainage disputes, especially when one pro-perty sits on higher ground than the other. Where this is the case, one should note that there are differences between natural watercourses, e.g. those created by rivers and streams, and naturally occurring drainage, such as rainfall which usually has no defined course.

If there is a natural water course which flows through two properties, the owner of the property on higher ground has no legal right to interrupt the flow of that water to the neighbour. The neighbour on lower ground can, therefore, enforce that right. The principle the law recognises is that "water flows naturally and it should be permitted to flow".

Most persons do not enjoy natural water courses flowing through their property; so the common legal problem usually relates to naturally occurring drainage.

With naturally occurring drainage, the neighbour on lower ground has no right to complain about the flow of the water and it is also true that the neighbour on higher ground has no obligation to prevent water that has come on his land naturally from flowing through his neighbour's land. However, the neighbour on lower ground could complain if the neighbour on higher ground collects water and it eventually escapes and causes damage to the property on lower ground.

The contradiction arises because, although he has no right to complain about the water, the neighbour on lower ground can physically stop the flow of that water. According to the case of Gartner v Kidman, the neighbour on lower ground "may put up barriers and pen it (water) back, notwithstanding that doing so damages the upper proprietor's land, at all events if he uses reasonable care and skill and does no more than is reasonably necessary to protect his enjoyment of his own land. But he must not act for the purpose of injuring his neighbour ... . Each case depends upon its own circumstances." Therefore, it is left to be seen what is reasonable, based on the facts of each case.

Physical action

The concluding point is made in the case of Palmer v Bowman (2000) in which the English Court of Appeal concluded that the owner of property on higher ground did not require an easement for water naturally flowing through his land to pass through his neighbour's land. He acquires that right through the "law of nature", but the right can be stemmed by the neighbour on lower ground if he takes reasonable physical action to prevent the flow of the water.

In short, there are legal rights and remedies on both sides. However, the moral of the story really lies in the fact that each neighbour has the common concern of securing his property and being able to enjoy it. Therefore, despite the fact that the protection of those interests may cause them to be at odds from time to time, there are always options to resolve the problem without having to resort to court.

Sherry-Ann McGregor is a partner and mediator in the firm of Nunes, Sholefield, DeLeon & Co. Comments and questions may be sent to lawsofeve@yahoo.com or lifestyle@gleanerjm.com.