The history of real property law is replete with litigation over how one property owner’s assertion of its rights to control and adapt their property impacts their neighbors. These cases usually involve damage to a neighboring property resulting from acts of so-called trespass—which might better be termed a nuisance—one of the most common being damage caused to one property through the drainage or manipulation of surface water by a neighbor.
This damage might be from an uphill owner redirecting water in a way that floods its downhill neighbor, or even a downhill neighbor who artificially blocks the flow of water across its land, leaving such water to damage its uphill neighbor. Moreover, particularly in New York City, where water damage results from neighboring construction, strict liability may also apply.
While the basic rules governing these cases have been well defined by the Court of Appeals for almost 150 years (see Barkley v. Wilcox, 86 N.Y. 140 (1881)), it is still a remarkably fluid area of law, with Appellate Court decisions constantly refining the boundaries of where liability may be imposed when the surface water from one property damages another.
The General Rules of Water Diversion
“The rule in New York governing the rights of owners of property with respect to diffused surface water is ancient and authoritative, predicated on two Latin maxims:… aqua currit et debet currere, ut currere solebat (Water runs and ought to run, as it has used to run); cujus est solum, ejus est usque ad coelum et ad inferos (Whose is the soil, his it is even to the skies and to the depths below).” Musumeci v. State, 43 A.D.2d 288, 290 and n1 (3rd Dept. 1974).
Diffused surface water—i.e. “water from rains and melting snows”—is considered a common enemy among all landowners. Barkley, 86 N.Y. at 142. See also Stormes v. United Water New York, Inc., 84 A.D.3d 1352, 1353 (2d Dept. 2011) (“Surface waters are defined as an ‘accumulation of natural precipitation on the land and its passage thereafter over the land until it either evaporates, is absorbed by the land, or reaches stream channels…Surface waters can also form as a result of flood waters detaching from the main current and spreading over land where they remain’”) (citations omitted); Musumeci, 43 A.D.2d at 290 n. 2 (New York law regarding surface water is “more properly called common-enemy rule…because diffused surface water is considered a common enemy which each owner may fight off or control as he is able”).
In 1881, the Court of Appeals in Barkley was confronted with the task of adopting a definitive rule on this subject. In addressing the rights of property owners concerning surface water flow, the Barkley court drew a strong distinction between the rights of a property owner to direct or dam the flow of surface water and rights concerning naturally flowing waterways, like surface streams and rivers.
As discussed in more detail below, when it comes to addressing surface water, a property owner has the absolute right to take whatever measures it wants to control or staunch the gathering of surface water on its property so long as it is done as part of (1) “improvements made in good faith to fit one’s property to some rational use” and (2) as the diffused surface water is not drained into another’s property by means of artificial pipes and ditches.” Musumeci, 43 A.D.2d at 291 citing Kossoff v. Rathgeb-Walsh, Inc., 3 N .Y. 2d 583, 589-590 (1958).
A Landowner May Not Divert or Block Rivers and Streams to the Detriment of a Neighbor
With respect to naturally occurring waterways such as rivers and streams—as opposed to surface water—the Court of Appeals in Barkley stressed that streams and the like may be used by the owner of any land over which such water passes, but the water itself is not “owned,” and the landowner may not prevent the water from continuing to flow past his property and onto a neighbors because
The owners of land on a water course, are not owners of the water which flows in it. But each owner is entitled by virtue of his ownership of the soil, to the reasonable use of the water as it passes his premises, for domestic and other uses, not inconsistent with a like reasonable use of the stream, by owners above and below him. Such use is incident to his right of property in the soil. But he cannot divert, or unreasonably obstruct the passage of the water, to the injury of other proprietors.
(emphasis added). The Court of Appeals then noted that “[t]hese familiar principles, are founded upon the most obvious dictates of natural justice, and public policy. The existence of streams is a permanent provision of nature, open to observation, by every purchaser of land through which they pass.”
A Landowner May Take Certain Steps to Combat Surface Water, Even to the Detriment of a Neighbor
By contrast to the obligation to allow a river to continue to flow across one’s property, the Barkley court noted that “the law has always recognized a wide distinction, between the right of an owner, to deal with surface water falling or collecting on his land, and his right in the water of a natural water-course.”
In Barkley, rain regularly gathered on the plaintiff’s lot before flowing onto the neighboring defendant’s property. The defendant used earth from construction of a house to fill in indentations, grade, and improve his property and the sidewalk in front of it; and, as a result, water pooled and damaged the plaintiff’s property.
In affirming judgment for defendant, the Court of Appeals held that it was in the public interest of cultivation and land improvement that a landowner must have the right to improve his land by preventing surface water from flowing over it or gathering, even if doing so would cause the water to be retained by the uphill landowner.
The court was careful to note that this rule does not allow for a lower landowner to, by artificial means, collect and divert surface water onto a neighboring property writing that “before [surface water] leaves his land and becomes part of a definite water-course, the owner of the land is deemed to have an absolute property, and he may appropriate it to his exclusive use, or get rid of it in any way he can, provided only that he does not cast it by drains, or ditches, upon the land of his neighbor, and he may do this, although by so doing he prevents the water reaching a natural water-course, as it formerly did, thereby occasioning injury to [neighboring properties].” (emphasis added).
In distinguishing improvements that staunch surface water pooling on one’s property from those that intentionally redirect water onto another property, the Barkley Court explained that “[t]here is a manifest distinction between casting water upon another’s land, and preventing the flow of surface water upon your own.” See also Bennet v. Cupina, 253 N.Y. 436, 428-39 (1930)(reconstruction and elevation of defendant’s driveway, which caused surface water to flow onto plaintiff’s property was not unlawful because “[s]ince this water is not cast by drains or ditches upon adjoining premises defendants may get rid of it any way they can….The resulting damage gives no right of action); Kossof, 3 N.Y.2d at 589-90 (no liability where defendant upper landowner’s improvement of adjoining lot by paving the surface area in connection with the construction of a gasoline station resulted in water leakage through the wall of plaintiff lower landowner’s building and property damage, because plaintiff had no “right to insist that the upper owner shall keep his land in its natural state, so that the surface water may percolate into the ground without flowing upon plaintiff’s land as it would be more likely to do after being improved.”). C.f. Buffalo Sewer Authority v. Cheektowaga, 20 N.Y.2d 47, 52 (1967) (defendant town’s use of basins and a drain system to redirect water into plaintiff’s system was “rather…that of a proprietor artificially collecting and concentrating large quantities of surface waters and discharging them into an outlet on another’s land unable to carry them off” and so it was liable for the damage to plaintiff).
The Appellate Departments Vastly Expands the Definition of “Artificial Means” to Include Culverts, Berms and the Expansion of Existing Water Routes
In the years since Buffalo Sewer, although still maintaining a landowner’s right to prevent surface water from gathering on its own property, the Appellate Divisions have slowly but surely expanded the definition of “artificial” means beyond the diversionary “drains, pipes, or ditches” specifically precluded by the Court of Appeals.
However, in any case, it still remains “plaintiff’s burden to establish that the improvements on the defendant’s land caused the surface water to be diverted, that damages resulted, and either that artificial means were used to effect the diversion or that the improvements were not made in a good faith effort to enhance the usefulness of the defendant’s property.” Hulse v. Simoes, 71 A.D.3d 1086, 1087 (2d Dept. 2010). The First Department cases of Ubiles v. Ngardingabe, 194 A.D.3d 436 and Univ. Ave. Assocs. LLC v. Andrews Dev. Corp., 92 A.D.3d 516 (1st Dept. 2012) concurred.
These Appellate Division cases have found liability for any sort of intentional diversion of water onto a neighboring property through berms, swales, and culverts, even if the defendant merely expanded or adjusted pre-existing structures.
For example, in Lytwyn v. Wawarsing, 43 A.D.2d 618 (3d Dept. 1973) the Third Department held that “[c]reating a channel which would discharge water onto another’s lands constituted an actionable wrong without requiring a showing that such channel was constructed or maintained in a defective, unsafe, dangerous or obstructive manner”; and in Hoffman v. Appleman, 120 A.D.2d 493, the Second Department, citing the Court of Appeals in Kossoff, noted that a “defendants’ installation of a culvertwithin an elevated access road hindered the natural flow of surface water and created an artificial gathering of water upon the plaintiffs land for which the defendants are liable.”
Likewise, in Long v. Sage Estate Homeowners Ass’n, Inc., 16 A.D.3d 963 (3d Dept. 2005), the Third Department held that defendant’s significant expansion of an existing berm was an artificial change that rendered it liable for water run-off damages to plaintiff.
Finally, in Krossber v. Cherniss, 125 A.D.3d 1274 (4th Dept. 2015), the Fourth Department determined that although “defendants established that their improvements were made in good faith…they admitted that they constructed a berm on their property, which may be considered an artificial means of diverting water.”
The Appellate Division Expands “Artificial” Means of Diversion to Include Certain Grading and Land Improvements
Following in the footsteps of Barkley and Kossoff, the Appellate Divisions have largely held that a landowner is not liable if paving, grading, and other improvements to his land divert water to a neighboring property. See Silverman v. Doell, 138 A.D.3d 1339, 1341 (3d Dept. 2016) (nothing ‘prevent[s] the owner of land from filling up the wet and marshy places on his [or her] own soil for its amelioration and his [or her] own advantage, [even if] his [or her] neighbor’s land is so situated, as to be incommoded by it’”) quoting Kossoff, 3 N.Y.2d at 589; Smith v. Town of Long Lake, 40 A.D.3d 1381, 1383 (3d Dept. 2007) (“Paving alone—as opposed to pipes, sluices, drains or ditches—does not constitute artificial means of diversion”); Prachel v. Town of Webster, 96 A.D.3d 1365, 1367 (4th Dept. 2012) (same); Congregation B’nai Jehuda v. Hiyee Realty Corp., 35 A.D.3d 311, 313 (1st Dept’ 2006) (“[w]here seepage occurs as a result of the natural grade of property, in the absence of any claim that such grade was created for the express purpose of diverting water onto another’s property, there can be no nuisance or trespass liability therefor”) citing Kossof, 3 N.Y.2d 583.
Indeed, as recently as 2021, the Fourth Department held in Hanley v. State, 193 A.D.3d 1397, 1397 (4th Dept. 2021) that the erection of a “curb” to block surface water from flowing onto one’s property was permissible because “‘[t]here is a distinction between casting water on the land of another and the right of that other to prevent the flow of surface water on [its] land’.”
However, two recent decisions from the Third Department seem to expand the definition of “artificial means” well beyond just pipes, culverts, berms, and similar water flow devices to include extensive land improvements and regrading to direct the flow of water.
First, in the 2017 case of 517 Union St. Associates LLC v. Town Homes of Union Square LLC et al., 156 A.D.3d 1187 (3d Dept. 2017), the Third Department announced that “[t]he diversion of water by artificial means, however, is not strictly limited to the use of pipes, drains and ditches and may otherwise be established where it is demonstrated that the net effect of defendants’ improvements ‘so changed, channeled or increased the flow of surface water onto [the] plaintiff[s]’ land as to proximately cause damage[] to the property’.”
In 517 Union, the defendant purchased two parcels adjacent to plaintiff’s land and then tore down a structure and built another, which purportedly led to flooding on plaintiff’s property. In reversing summary judgment that had dismissed the water damage claim, the court determined that, based on testimony that the construction and regrading may have—without resorting to any culverts or other artificial means—changed “water flow patterns” “there are triable issues of fact as to whether defendants’ improvements to the subject parcels diverted surface water onto plaintiffs’ property by artificial means.”
More recently, in Wfe Ventures v. Gbd Lake Placid, 197 A.D.3d 824, 829 (3d Dept. 2021), the Third Department explained:
This Court has held that the definition of artificial means should not be read so narrowly, as other, more esthetically pleasing means of water diversion—such as the construction of a swale or a berm—have been held to potentially constitute artificial means sufficient to form the basis for liability [citations omitted]. Indeed, “[the diversion of water by artificial means . . . is not strictly limited to the use of pipes, drains and ditches and may otherwise be established where it is demonstrated that the net effect of [the] defendant[‘s] improvements so changed, channeled or increased the flow of surface water onto the plaintiff[‘s] land as to proximately cause damage to the property.”
The Third Department went on to hold that, where the defendant had placed a total volume of 59,500 cubic feet of earthen fill to extend the slope of its land, “[a] jury might well conclude that the use of such a volume of fill to change the natural slope of the land could be deemed an artificial, as opposed to a natural, means of water diversion…and thereby expose defendant to liability.”
Property Owners May Be Held Strictly Liable for Water Damage to Neighbors Resulting from Certain Construction
These same principles also provide recourse to property owners for other damage resulting from the diversion of water during neighboring construction or even the negligent drainage of underground reservoirs, particularly in New York City. As the First Department recently held in 7-11 E. 13th St. Tenants Corp. v. New Sch., 221 A.D.3d 401 (1st Dept. 2023), New York City “Administrative Code § 3309.4…imposes on owners and contractors an absolute obligation to preserve and protect ‘any adjoining’ structures from injuries due to foundation-related excavation activities.”
This holding aligns with the Court of Appeals 2012 decision in Yenem Corp. v. 281 Broadway Holdings, 18 N.Y.3d 481 (2012) applying the predecessor statute and noting that the “original purpose” of strict liability, to “shift[] the risk of injury from the injured landowner to the excavator of adjoining land has remained constant over the years.”
Section 3309.4 and its predecessor does not differentiate between damages to a foundation caused by mechanical work and water damage resulting from neighboring foundation-related activity. Correspondingly, where construction on the foundation of one property—by disturbing water flow, depleting underground waters, or allowing water to gather—damages a neighboring property, the impacted neighbor may have recourse under Section 3309.4 and the above-noted caselaw.
However, recovery is not limited to Section 3309.4. Indeed, in each of the below cases, New York courts have found other grounds for suits related to damage from subsidence or gathered water after a neighboring property owner drains or otherwise manipulates underground water—such as an underground reservoir—or allows water to gather in a construction site, which negligently results in damage, including subsidence on an adjacent property. See A. L. Russell, Inc. v. City of New York, 4 A.D.2d 943, 944 (1st Dept. 1957), aff’d, 5 N.Y.2d 794 (1958) (“We would not agree with defendants’ argument that they might with legal impunity heedlessly drain water from the subsoil supporting an adjoining building knowing that as a likely consequence the building would settle”); Doundoulakis v. Town of Hempstead, 42 N.Y.2d 440, 446-49 (1977) (ordering new trial including as to whether landfill operation that “pumped under pressure” a “dredged mix of 85% water and 15% sand…raised the underground water table, thereby increasing pressure” damaged plaintiffs’ property or was subject to strict liability) differentiating Kossof, 170 N.Y.2d 583; Deutsch v. Nat’l Props., Inc., 37 Misc. 2d 860, 862 (N.Y. City Ct. 1961), aff’d, 37 Misc. 2d 863, 238 N.Y.S.2d 882 (App. Term 1963), and modified on other grounds, 19 A.D.2d 823 (1st Dept. 1963) (“the damages alleged by the plaintiff were caused by the defendants…by reason of their failure to properly brace and shore up the grounds while excavating; by their failure to provide proper drainage of the water that was filling in during the excavation; and by their failure to plug up and secure the exposed sewer pipe located within the excavation”).
Adam Leitman Bailey is the founding partner of Adam Leitman Bailey, P.C., and Eric S. Askanase is a partner in the firm’s real estate litigation group. Richard Trabosh, a third-year law student at Hofstra University and a summer associate of the firm, assisted in the preparation of this article.
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