BLG Newsletter: Water Law and Reasonable Use Law

by Chad Sweeting, Esq.

While most other states are rightfully envious of our weather in Florida, living here still means that we must deal with the occasional deluge of rain associated with a hurricane or large storm.  With this rainfall comes potential issues with our neighbors regarding drainage.  Who is responsible for damage brought about by improving your land to deal with this excess water?

There were originally two schools of thought in Florida courts when dealing with interference of surface waters.  The first was the so-called “common enemy rule.”  This allowed property owners an unlimited privilege to deal with surface waters, regardless of how it affected their neighbors.  This rule allowed for predictable, yet at times unjust, outcomes in disputes.  It encouraged property owners to engage in engineering contests in which the winner was the one who built the latest or most complicated way to divert the water onto his neighbor’s land.

The second doctrine was the “civil law rule.”  This rule recognized that higher elevation land had an easement over lower elevation land for all naturally flowing surface water.  The rule forbade one landowner from increasing or interfering with the natural flow of surface waters which would cause invasion on another’s land.  This rule discouraged anyone from improving their land at all since any such improvements would likely increase the surface water problem for the other landowner.

Since neither rule was perfect, the Florida Supreme Court adopted what is known as the “reasonable use rule” in Westland Skating Ctr., Inc. v. Gus Machado Buick, Inc., 542 So. 2d 959 (Fla. 1989).  The reasonable use rule is a compromise between the two former rules. It states that a landowner will only incur liability for improvements that are deemed “unreasonable.”  Although this rule provides for less predictability, it gives courts more flexibility with which they can come to a just decision.

So, before building that giant moat replete with alligators and a drawbridge that diverts all rainfall onto your neighbor’s land, think about whether that improvement would be considered a “reasonable” way to deal with surface water…and think about how difficult and dangerous it would be to capture all of those gators.