Citation. 20 N.J. 320, 120 A.2d 4, 1956 N.J. 59 A.L.R.2d 413.
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A man changes the natural drainage pattern of a stream. Water from his property passes through a stream into another’s and erodes the other’s property.
Synopsis of Rule of Law.
Under the reasonable use doctrine, an owner may make only reasonable changes in the natural drainage pattern of surface water.
Facts.
The defendant owns land upland from the plaintiff’s land. When the defendant’s land drains, the surface water goes into a small stream and crosses the plaintiff’s land. The defendant built a development and made large changes to the drainage system. Now, a huge amount of surface water passes into the stream. The plaintiff’s property begins to erode and flood, damaging his home.
Issue.
When a person makes significant changes to the drainage flow of his property, and this change damages another’s property, is the person liable for the damage caused?
Held.
Yes. Judgment affirmed.
The State, up to this point, has followed the common enemy rule, which states that surcease waters are the common enemy of man. Therefore, a landowner is allowed to protect his land by any means he wants, even if it damages another’s land. Other states follow the civil law rule, which states an owner may not channel the drainage, or otherwise change its natural flown in any way.
The reasonable use doctrine, which is applied here, states that an owner may make only reasonable changes in the natural drainage pattern of surface waters.
When the drainage flow has been increased so substantially as to cause damage to plaintiff’s property, the defendant should pay the plaintiff an amount that will allow plaintiff to install a protection on his land.
The defendant is engaged in a social good by building the development, but he should pay when his new drainage system causes harm to someone else.
Discussion.
The reasonable use doctrine is the middle ground between the common enemy rule and the civil law rule. The common enemy rule would result in one landowner ruining another owner’s land; the civil law rule would prevent a landowner from making his own land usable.
