Flooded Property

While Northern Michigan’s sandy soil normally drains quickly, in my career I have come across a few issues of increased flooding on a property by actions taken by neighbors to their property. 

Normally the property owner notices flooding in the basement, perhaps leading to the installation and continuous running of a sump pump, or flooding of a lawn area.  Michigan law does provide relief in such circumstances. 

The caselaw divides flooding issues into two categories, based on the type of water flow.  The first is riparian rights, the second is surface waters.  Riparian means land abutting a stream or river.  Riparian rights are in play when the diverted water is a “water course.”  A water course is defined as “A natural stream of water feed from permanent or periodical sources and usually flowing in a particular direction in a defined channel, having a bed and banks or sides, and usually discharging itself into some other stream or body of water.”[1]    The second category is surface waters, which are “Waters on the surface of the ground, usually created by rain or snow, which are of a casual or vagrant character, following no definite course and having no substantial or permanent existence.”[2]   Obviously rivers such as the Manistee, Boardman, Au Sable, and others are clearly water courses.  Smaller local streams would also be water courses.  As the flow gets smaller, it will become a question of fact whether the water flow is surface waters or riparian waters. 

If the water is riparian/water course, the upstream property has riparian rights to make reasonable use of the water course.  However, those rights have limits.  For instance, the upstream user cannot pollute the water, nor can the upstream user unreasonably increase the flow of the water course to the extent that it floods the downstream property. 

Most of the residential cases regarding flooding involves surface waters.  Surface water disputes are actually resolved under the doctrine of trespass.  A trespass is defined as “A wrongful entry on another’s real property.”  The definition of trespass is broad, and would include the directing of objects, in this case water, onto the property of another.[3]   For flowing surface waters, the lower property must receive the surface water from the upper property, in its natural flow.[4]   However, Michigan law also states that the higher property has no right to increase the amount of water that would otherwise naturally flow onto the lower property.[5] 

If an upstream or high property has unreasonably increased the flow of the water course or flow of the surface waters onto a downstream or lower property, there are two types of remedies available.  The first is injunctive relief.  This would be an order from the court directing the defendant (upstream or higher property) to stop the increased flow and to fix any damages.  This injunctive relief is, at least in theory, available in all circumstances, even where the downstream or lower property cannot show money damages.  It would be enough just to demonstrate that there was increased water on the property.  The second category is money damages.  This would compensate the downstream or lower property with money damages for things such as loss and value of the property and home, flooded items in the house, or costs associated with removing the water from their property. 

If you have concerns over flooding on your property, or you have been accusing of causing flooding on someone else’s property, please contact me.     

[1] Kernen v. Homestead Development Company, 232 Mich App. 503 (1998), quoting Grand Rapids and IR Co. v. Round, 220 Mich 475 (1922), quoting Black’s Law Dictionary (2d Ed).  

[2] Id, quoting Fenmode v. AETNA Casualty and Surety Co., 303 Mich 188 (1942). 

[3] Boylan v. 58, LLC, 289 Mich App 709 (2010). 

[4] Kernen, supra. 

[5] Id.