So, your neighbors are at it again, but this time with a little help from mother nature. Water runoff and flooding can cause extensive damage to your property. The question is: what can YOU do about it?
In general, water runoff or flooding is not considered a trespass or nuisance. However, there are instances in which your neighbor can be held accountable for trespass or nuisance, such as when your neighbor takes some form of action to cause the water to runoff onto or flood your property. In those cases, the most common claims are trespass and nuisance. Of the two, your likely remedy is trespass; although many persons allege a nuisance in these instances, it is highly unlikely to be successful.
Trespass Claims Against Neighboring Parties
To be successful on a trespass claim, you must prove “an unauthorized direct or immediate intrusion of a physical, tangible object onto land over which the plaintiff has a right of exclusive possession.” Adams v. Cleveland-Cliffs Iron Co., 237 Mich. App. 51, 67, 602 N.W.2d 215 (1999). Further, the intrusion must have been intentional. Cloverleaf Car Co. v. Phillips Petroleum Co., 213 Mich. App. 186, 195, 540 N.W.2d 297 (1995); see also Adams, 237 Mich. App. at 66, 602 N.W.2d 215. “‘[I]t is enough that an act is done with knowledge that it will to a substantial certainty result in the entry of the foreign matter.’” Adams, 237 Mich. App. at 71, quoting 1 Restatement Torts, 2d, § 158, comment i, p. 279. It is undisputed in Michigan that a person’s intentional and unauthorized act of causing excess waters to flow onto another person’s property constitutes a trespass.” Wiggins v. City of Burton, 291 Mich. App. 532, 566, 805 N.W.2d 517 (2011); See also, Adams, 237 Mich. App. at 67, 602 N.W.2d 215 (internal quotations omitted) and Wolfenbarger v. Wright, 336 Mich. App. 1, 15, 969 N.W.2d 518, 527–28 (2021).
This trespass claim is often found after a neighbor had construction performed on their property that alters the waterflow or their property’s elevation. For example, in Wiggins v. City of Burton, 291 Mich. App. 532, 566, 805 N.W.2d 517 (2011), construction on a neighboring property increased the elevation to that property, and it, among other reasons, caused water to run off onto the Plaintiff property, producing significant surface-water drainage problems.
Intent is likely the most difficult element to prove in a trespass claim, especially in water runoff, drainage, or flooding issues. However, intent is utterly necessary to succeed on your trespass claim. In Wolfenbarger, 336 Mich. App. at 6, 969 N.W.2d at 523, a neighbor constructed a pond and a new road on his property, which the plaintiff claimed caused water to collect on the plaintiff’s property, killing nearly 80 trees by the time of trial and damaging the foundation to the plaintiff’s home. The plaintiff brought claims against his neighbor alleging trespass, nuisance, and negligence. Id., 336 Mich. App. at 7, 969 N.W.2d at 524. The neighbor filed for summary disposition, claiming that the water runoff, drainage, or flooding was not intentionally and could not be considered a trespass as a result. Id., 336 Mich. App. at 8, 969 N.W.2d at 524.The Court of Appeals agreed, reasoning that there was no evidence to support that the neighbor constructed the pond and new road with the intent of directing the water onto the plaintiff’s property. Id., 336 Mich. App. at 17, 969 N.W.2d at 529. As a result, the Court of Appeals found that there was no trespass, despite the flooding, drainage, or water runoff. Id.
Nuisance Claims Against Neighboring Parties
The distinction between trespass and nuisance is important: a trespass involves a physical intrusion of a tangible object onto the land of another without regard to whether any harm ensues, whereas a nuisance involves some kind of contamination of the environment over the land of another that interferes with that other’s use of the property and causes significant harm. See Wiggins v City of Burton, 291 Mich. App. 532, 554-556; 805 NW2d 517 (2011). Since it is well-established in Michigan that water is a physical, tangible object for the purpose of trespass, such facts cannot establish a nuisance claim.
Regardless, it is important to note the elements for a nuisance, which might be applicable against your pesky neighbor in other instances. Michigan recognizes three types of nuisances: (1.) private nuisance, (2.) public nuisance, and (3.) nuisance per se. In most cases involving a dispute with a neighbor, a nuisance claim will be one for a private nuisance. As to a private nuisance claim:
[A]n actor is subject to liability for private nuisance for a nontrespassory invasion of another’s interest in the private use and enjoyment of land if (a) the other has property rights and privileges in respect to the use or enjoyment interfered with, (b) the invasion results in significant harm, (c) the actor’s conduct is the legal cause of the invasion, and (d) the invasion is either (i) intentional and unreasonable, or (ii) unintentional and otherwise actionable under the rules governing liability for negligent, reckless, or ultrahazardous conduct. Adkins v. Thomas Solvent Co, 440 Mich. 293, 304; 487 NW2d 715 (1992) (citing 4 Restatement Torts, 2d, §§ 821D-F, 822, pp 100-115); see also Postma v. Cnty. of Ottawa, No. 243602, 2004 WL 1949317, at *11 (Mich. Ct. App. Sept. 2, 2004); and Wolfenbarger v. Wright, 336 Mich. App. 1, 17, 969 N.W.2d 518, 529 (2021).
Thus, in disputes involving flooding or water runoffs, it is unlikely for a nuisance to apply, unless there are other material facts; however, you might have additional facts or issues what would constitute a nuisance, and it is important to investigate those further.
A proper nuisance claim that closely relates to runoff, flooding, or drainage issues can be seen in the unpublished case of Taylor v. Belill, No. 354613, 2021 WL 3117728, at 1 (Mich. Ct. App. July 22, 2021), appeal denied, 970 N.W.2d 330 (Mich. 2022). In that case, a neighbor installed drainage swales to cause the water on his property to flow into a ditch. Id. After two years, the water began to back up in the ditch, overflowing onto the plaintiff’s property, and the plaintiff filed a lawsuit, claiming nuisance. Id. Thereafter, the jury found in the plaintiff’s favor, awarding him with $1,000.00 in damages, and the court order equitable relief including remedies to prevent further nuisance. Id. at 3.
Damages / Remedies for Trespass
If successful on a trespass claim, the general measure of damages is the diminution in value of the property if the injury is permanent or irreparable. O’Donnell v. Oliver Iron Mining Co., 262 Mich. 470, 477, 247 N.W. 720 (1933). Damages may be recovered for “any appreciable intrusion.” Adams at 72, 602 N.W.2d 215.
Moreover, if the injury is reparable, or temporary, the proper measure of damages is the cost of restoration of the property to its original condition, if less than the value of the property before the injury. O’Donnell at 477, 247 N.W. 720. However, the rule is flexible in its application. Schankin v. Buskirk, 354 Mich. 490, 494, 93 N.W.2d 293 (1958). The ultimate goal is compensation for the harm or damage done. Thus, whatever method is most appropriate to compensate a plaintiff for the loss may be used. Id.
Further, in certain circumstances, you could be entitled to treble damages through MCL 600.2919. Treble damages are three times the amount of actual damages.
Finally, in some instances, you could also be awarded equitable relief. For example, a court could require the neighbor to remove something from his property that is causing the trespass.
When mother nature strikes, through the help of your neighbors, you have remedies available to you – but only for a short period of time. It is imperative that you act immediately, or you could be barred from litigating the matter and lose out on any potential remedy through trespass or nuisance claims. Understanding the laws and circumstances surrounding trespass and nuisance claims against a neighboring property which caused damage to your own can be difficult without the help of an experienced real estate attorney. A real estate attorney will be able to help navigate through the Michigan laws applicable to your property and determine when the trespass and nuisance statute of limitations went into effect.
Kara Moore is an attorney at Hirzel Law, PLC and focuses her practice on general real estate litigation. Ms. Moore received her Bachelor of Arts degree in Communication from Bob Jones University in South Carolina. Ms. Moore earned her Juris Doctor degree from Western Michigan University Cooley Law School. While in school, Ms. Moore made the Honor Roll for six terms and the Dean’s List for seven terms. Ms. Moore is a member of the Macomb County Bar Association and the Genesee County Bar Association. Ms. Moore has extensive experience performing legal research, arguing motions, conducting depositions, and drafting pleadings and discovery in real estate litigation, probate litigation, Landlord-Tenant litigation, and civil litigation, and drafting estate planning documents. She can be reached at (248) 480-8704 or at firstname.lastname@example.org.