Water, Water everywhere

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“Water, water everywhere and not a drop to drink!” Although this line refers to the experience of being lost at sea, when we get a thunderstorm in the Virgin Valley it could also be used to refer to rain water run-off which can be significant. Because the soil types here in the valley do not absorb much moisture, a lot of rain at one time can be quite destructive. I am frequently asked legal questions about who is responsible for property damage caused by water flowing from one property to another after heavy rains.

As you may imagine, the law in Nevada is primarily concerned with who gets to use scarce water resources, not with who is responsible for damage from too much water. Nonetheless, what law there is generally requires property owners to take “reasonable” steps to ensure the drainage of property does not harm the neighboring properties.

Thus, if your neighbor makes a change to the natural contours of his or her property which causes water (and of course the mountain of mud and silt that comes along with run-off) to flow onto your property, your neighbor may be held responsible for the damage to your property. Determining responsibility generally comes down to whether the change your neighbor made to his property was “reasonable.” Further, this rule only applies when a property owner makes changes to the natural contours of the land; courts in Nevada generally do not penalize property owners for consequences of natural drainage of their land onto the neighboring properties.

Naturally, the difficulty comes in determining what is “reasonable.” Courts consider a variety of factors. One important consideration is whether it was foreseeable that your neighbor’s change to his or her property would change the water drainage and cause damage to your property. Another key factor is how important or necessary the change was. A third factor the courts will look at is what normal industry practices are used for controlling flood waters and run off in the area where the property is located. If the changes to your neighbor’s land are consistent with industry practices, he or she probably isn’t going to be on the hook for water damage to your property.

Because Nevada law is not well developed on matters relating to too much water (I can’t imagine why) the exact boundary between “reasonable” and “unreasonable” changes to land is still being defined by the courts. Nonetheless, the more careless or reckless your neighbor’s actions are and the more disregard they show for surrounding properties, the more likely a court will find them liable.

Determining responsibility for water damage can be important because unless you have flood insurance (which, unless you live in a flood plain you probably don’t), your insurer is unlikely to cover any flood-related damage, even if caused by the unreasonable actions of a neighbor. Insurance companies generally deny claims for water damage unless it’s caused by a broken pipe or appliance failure in a structure. A call to a reputable civil engineer before you make changes to your own land and/or a call to a competent attorney if your neighbor has caused water to flow onto your property may be an important investment for you.

Clifford Gravett is a local attorney with the Virgin Valley law firm of Bingham Snow & Caldwell located in Mesquite. The firm serves clients in Nevada, Arizona, and Utah (702-346-7300 / www.binghamsnow.com). Is there a topic you’d like to see discussed in a future article? E-mail him at mesquiteesq@gmail.com.

 

 

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