COM 0598.027 2006-2008 - Laserfiche WebLink

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Historical Evolution of Surface Water Drainaee Law Surface drainage is a complex subject and rights and responsibilities of land owners with respect to surface drainage have been viewed from different perspectives over the years. We believe it is important for the Council to understand the principles and theories involved in drainage law in order to properly evaluate the amendments that have been proposed to Chapter 27. We are not an attorneys and recommend that the Council verify the information presented below for accuracy and content. It is our understanding that there aze three basic doctrines which have been historically applied to drainage disputes in the United States: The Common Enemy Doctrine, Civil Law Rule, and the Rule of Reasonable Use. The Common Enemy Doctrine The original common enemy doctrine provided that a landowner had an indisputable right to fight off surface waters as necessary without being required to take into account the consequences to other land owners, who also had the right and responsibility to protect themselves as best they could. Surface water was thus regarded as a common enemy which each property owner could fight off or control by any means including, detention, channelization, diversion, or other methods. There was no cause of action even if some injury occurred to an adjoining parcel. It is my understanding that most government agencies have modified this by implementing either the Civil Law Rule or the Reasonable Use Rule doctrines. Civil Law Rule The civil law rule mandates that a lower land owner must accept the surface water which naturally drains onto his land but the upper land owner does not have the right to change the natural system of drainage to increase the burden on the lower parcel. The civil rule law created problems with allowing development because virtually all development has a tendency to change the flow either in quantity or velocity. Thus according to the civil law rule, if the quantity or velocity of water flow were changed, the natural flow on the downstream property would be changed and would be in violation of the civil law rule. Reasonable Use Rule The reasonable use rule was developed as an attempt by the courts to balance the hazdship created in attempting to control surface waters and the relationship between the competing rights/liabilities of adjoining land owners. The rule provides flexibility in avoiding the harsh results of applying both the common enemy doctrine and the civil law rule to vazious land use situations. Under the reasonable use rule, a property owner can legally make reasonable use of land, even though the flow of surface waters is altered and causes some harm to others. Liability occurs when the property owners' harmful interference with the flow of surface water is "unreasonable". Reasonableness is determined by three basis questions: (1) was there reasonable necessity for the property owner to alter the drainage to make use of his land? (2) was the alteration done in a reasonable manner? (3) does the utility of the landowner's conduct reasonably outweigh the gravity of harm to others? It is our understanding that the State of Hawaii has adopted Reasonable Use Rule doctrine in which landowners will not be liable so long as the resulting interference with the plaintiffls land is not unreasonable. If Chapter 27 is going to include storm water runoff regulations, we request that it be written so that it is made very clear that the reasonable use rule is the governing principle that will be used when reviewing and approving land development and drainage design.