Everyone in the Pee Dee knows that rain this year has been plentiful. As Forrest Gump said, "We been through every kind of rain there is. Little bitty stingin' rain… and big ol' fat rain. Rain that flew in sideways. And sometimes rain even seemed to come straight up from underneath. Shoot, it even rained at night!" Okay, maybe I exaggerate a bit; and most things that the rain brings us are good. A few though, like flooding and runoff, aren't so easy to deal with. Working with many of the real estate issues that are presented in our practice I often see landowners struggling with these issues.

As an example, let's say Landowner A owns property adjoining Landowner B. Landowner A, experiencing a standing water issue during heavy rains, builds up his property with dirt to help water drain off. The water, having to go somewhere, will obviously run downhill to Landowner B's now lower property. Can Landowner B collect from Landowner A for flooding his land and lowering the property's value? Not likely. Under our state law, surface water, such as the runoff in our example, is treated as a "common enemy." The term "common enemy" dates back to English Common Law and means that the water is everyone's problem, to be dealt with as best they can. The rule (as you would expect) is subject to exceptions. Most importantly, a landowner is usually prohibited from gathering water up, such as in a pipe or culvert, and "casting" it on an adjoining property. The common enemy rule is also subject to another theory of law, known as the law of nuisance. The law of nuisance - among many other things - usually prohibits an individual from blocking up or changing the flow of a natural water course, like an existing stream, river, or canal. If this is done, the courts may step in when asked to impose penalties or to make the offending landowner put the land back to its original condition.

The common law is sometimes only part of the puzzle. County ordinances, state laws, and DHEC regulations may put further restrictions on how landowners may deal with surface water. If you have a specific question about a problem with your property, please do not hesitate to contact me. Until then, just enjoy the good things the rain brings!

~ J. Greg Hendrick