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Can I sue my neighbor who received a lot of fill and raised his property substantially, causing water to drain onto my yard...

Potsdam, NY |

because now my yard is much shorter. The neighbor received a lot of fill from local contractors. When I asked the contractors for fill, they said my property was further away (less than 1/2 a mile) and the neighbors property was closer. So, their property is much higher than it was, and my back yard always floods. I have no proof, but it is obvious they received so much fill. Can I legally do anything? It has been happening going on about 3 years now. My basement also floods now. It did a little before, but much more now in the past 2 years.

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Attorney answers 4

Posted

As you stated that you "have no proof" and you are 1/2 mile away it would be an extremely difficult case to win. If you could obtain proof you might be able to seek relief based upon your neighbor creating a nuisance.

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Posted

I agree with Mr. Chertok. If the neighbor's property is 2000 feet away, it's unlikely that their fill caused a nuisance. Also, at common law, drainage problems were generally not considered nuisances if a landowner improved his property by importing fill which caused natural drainage patterns to change.

Today, most impacts of that nature are dealt with in the planning, zoning and environmental law context where fill placement may be regulated by stormwater management or wetlands permitting which may require permission to place fill on property or require that post construction/improvement runoff volumes not exceed pre-development runoff.

However, this depends on the location of the property (city vs. country), the type of development (single family vs. subdivisons or commercial development and other factors. You should consult with a landscape architect or engineer in the area to see whether the neighbor's fill placement was regulated or whether it has a causal link to your flooding problems before consulting an attorney if there is some remedy. Your local building codes officer or planner may be able to offer some insights and advice as well.

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Posted

I think there is a 3 year statute of limitations for suing for damages if you have a cause of action at all. An up-gradient property owner cannot change the character of his or her land such that it changes the drainage from the up-gradient property to the down-gradient property. You would need a qualified expert to advise whether this has been done.

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Jack Richard Lebowitz

Jack Richard Lebowitz

Posted

Is there NY case law on that proposition; I'm curious if that's the case? I always thought under the common law, drainage (unlike changing watercourses) was the "common enemy" and a landowner was not liable for improvements to his land that changed drainage patterns (other than the modern typical stormwater management or SWPPP permits and rules that apply to a lot of development under the Clean Water Act or the wetlands laws where jurisdictional activities under those laws occur).

Jack Richard Lebowitz

Jack Richard Lebowitz

Posted

See my further comment below to Mr. Bollhofer on the common law and case law contra this proposition (Kossoff v. Rathgeb-Walsh, 3 NY 2d 583 (1958)).

Richard J. Brickwedde

Richard J. Brickwedde

Posted

As the Kossoff case states, "either proprietor can improve his land according to his own desire in any manner to which the land is suited, without being liable to the abutting owner for change in the flowage of the surface water provided that he does not resort to drains, pipes or ditches." either proprietor can improve his land according to his own desire in any manner to which the land is suited, without being liable to the abutting owner for change in the flowage of the surface water provided that he does not resort to drains, pipes or ditches." That is the key language that would have to be addressed to have a cause of action.

Jack Richard Lebowitz

Jack Richard Lebowitz

Posted

Yes, but the asker seemed to imply it was only filling his land that was the problem. Still, aside from the legal niceties, he would have to brought in an unimaginable quantity of fill to be affecting properties half a mile away. :-)

Posted

Under Common law in NY, property owners have a legal obligation to runoff
from flooding neighboring properties. If the neighbor will not listen to
reason and the local municipality will not help you, a lawsuit is your only
alternative.

Joseph A. Bollhofer, Esq.

Joseph A. Bollhofer, P.C.

291 Lake Ave.

St. James, NY 11780

(631)584-0100

fax (631)584-2304

info@bollhoferlaw.com

www.bollhoferlaw.com

Member, National Academy of Elder Law Attorneys (NAELA)

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not the intended recipient, please notify the sender immediately by return
e-mail and delete this e-mail and all copies and attachments. If you are not
the intended recipient, or the employee or agent responsible for delivering
the message to the intended recipient, you are hereby notified that any
dissemination, distribution or copying of this communication is strictly
prohibited.

IRS Circular 230 Notice: Unless specifically stated otherwise, any tax
advice contained in this communication (including any attachments) is not
intended or written to be used, and cannot be used, for the purpose of (i)
avoiding penalties under the Internal Revenue Code or (ii) promoting,
marketing or recommending to another party any transaction or matter
addressed herein.

Unless specifically stated otherwise, this communication shall not be deemed
to be legal or tax advice, and no attorney-client relationship shall be
deemed to have been created.

Unless specifically stated otherwise, this communication shall not be deemed to be legal or tax advice, and no attorney-client relationship shall be deemed to have been created.

Jack Richard Lebowitz

Jack Richard Lebowitz

Posted

Both you and Mr. Brickwedde above have advanced this proposition, but I'm wondering if that's because of a "common sense" interpretation of the law of "nuisance" more than what the common law says, at least as I seem to recall it hazily from my law school days (I have never litigated a case that relies on the common law because of the more pervasive stormwater management standards these days that seem to have addressed this problem through regulation). I did a (very) quick Google Scholar search on point, and found a 1958 Court of Appeals case, Kossoff v. Rathgeb-Walsh, 3 NY2d 583, which says the "upper" owner can fill his land and not face a nuisance lawsuit for damages, but a lower owner cannot "dam" his land to revert the runoff. In pertinent part, the Court states: "Under the common law adopted in this State, either proprietor can improve his land according to his own desire in any manner to which the land is suited, without being liable to the abutting owner for change in the flowage of the surface water provided that he does not resort to drains, pipes or ditches. Under the civil law the lower owner could not dam up the surface water and flood the land of the upper proprietor; under the common law he can do so. There is little discussion in Barkley v. Wilcox in respect to what the upper owner may do to his property, inasmuch as his rights to improve his land were not questioned in that case under either the civil law or the common law. The question was whether the lower owner could throw back the water by raising his grade, which he could not have done if the civil law applied. The conclusion was reached that upper and lower owner each has the right to improve his property, and that the lower owner is not to be discriminated against in this regard in favor of the upper. It was not the thought in adopting the common-law rule, that the lower owner could back up the surface water in improving his property so as to flood the cellar of the upper owner without there being a 589*589 corresponding immunity from liability on the part of the upper owner, if such a result occurred to the lower owner from the improvement of the land of the upper owner. This is made explicit by the dictum in the opinion by DENIO, Ch. J., in Goodale v. Tuttle (29 N.Y. 459, 467) which is adopted in Judge CHARLES ANDREWS' opinion in Barkley v. Wilcox (supra, p. 144) as the basis for the Barkley decision, viz.: "And in respect to the running off of surface water caused by rain or snow, I know of no principle which will prevent the owner of land from filling up the wet and marshy places on his own soil for its amelioration and his own advantage, because his neighbor's land is so situated, as to be incommoded by it. Such a doctrine would militate against the well-settled rule that the owner of land has full dominion over the whole space above and below the surface." http://bit.ly/YQ0Lrv The case seems to be good law today, so long as the upper owners don't use "artificial" means to drain their lands, like ditches or pipes to convey the runoff: http://bit.ly/YQ0O6p