Loss Prevention Alerts

Loss Prevention Alert No 49

Damage Caused by Water from Another’s Land

In April 2010, the New Civil Engineer magazine reported news of a rail disaster in Italy in which 9 people lost their lives and 30 more were injured.  The first carriage of the train was knocked off the rails and filled with mud when a landslide occurred on the slope above the track.  It is understood that the landslide was triggered either by the failure of an irrigation pipe located at the crest of the slope, or by an uncharted spring.  This incident prompted an AGS member to query what the legal position is when water flows off an owner’s land onto his neighbour’s land and causes damage. 

Such damage can occur in a variety of ways such as: surface water run-off; escapes from roadside ditches; diversion, culverting, or restricting of natural streams; erecting barriers against floods; escapes from pipes; or simply due to the natural contours of the land.  Unsurprisingly, questions as to whether and to whom legal liability attaches are dependent on the particular facts of each individual case.

This LPA cannot discuss all possible eventualities and is therefore confined to three common scenarios bearing some similarities to the circumstances of the above incident.  It should be borne in mind throughout that the proprietor of higher land has a natural right to allow the water which naturally falls onto his land to discharge onto the contiguous lower land of another proprietor. 

1. Naturally occurring surface water accumulates at a certain point on a proprietor’s land, such as the crest of a slope, before flowing onto neighbouring land and causing damage.

An occupier of land is under a general duty of care to remove or reduce hazards to his neighbour, whether natural or man-made, occurring on his land.  In relation to natural hazards, a “measured duty of care” exists in nuisance and negligence (Goldman v Hargrave [1966] 2 All ER 989 and Leakey v National Trust [1980] 1 All ER 17).    This means that the owner of higher land is under a “measured duty of care” to remove or reduce the hazard if he becomes aware that naturally draining land is causing damage to his neighbour’s lower land. 

The duty will arise if:

1. the owner or occupier of the land knew or ought to have known of the condition or defect on his land giving rise to the hazard;
2. it was reasonably foreseeable that the defect or condition, if not remedied, would cause damage to the neighbour’s land;
3. the owner can abate the hazard by taking “reasonable measures”. The assessment of “reasonable measures” must take into account:

1. the fact that the owner has had the hazard thrust upon him through no intention or fault of his own;
2. the owner’s financial and practical means;
3. the means of his threatened neighbour to protect himself, either by works on his own land or funding works to the owner’s land; and
4. the owner’s individual circumstances.

Therefore, if a risk can be readily overcome or lessened, the landowner will be in breach if he does nothing or too little about it.  But if the only remedy is substantial and expensive works, the landowner may well be able to discharge his duty of care by giving his neighbour permission to come onto his land to carry out agreed works at the neighbour’s expense or on the basis of a fair sharing of expense, or by simply informing his neighbour of the existence of the hazard; and

4. the damage that resulted was foreseeable and it is fair, just and reasonable in the circumstances to impose a duty.

Therefore, in this particular example, if the owner of the higher land knew or ought to have known of the risk (e.g. because he saw the water pooling or it had happened before) it is likely that he will be liable if he failed to at least warn his neighbour of the risk.

2. An irrigation pipe on a proprietor’s land bursts, giving rise to a concentrated flow of water onto a neighbour’s land which causes damage.

As stated above, the proprietor of higher land has a natural right to allow the water which naturally falls onto his land to discharge onto the contiguous lower land of another proprietor.  If the water goes onto his neighbour’s land in the ordinary course of nature, without assistance from him, he is not liable for any resultant damage.  However, if he digs a drain or does any other act, such as landscaping for example, which causes it to go into his neighbours’ land, when otherwise it would not, he will be liable in nuisance for any damage. 

Where a landowner does something on his own land which causes water naturally on the land to flow more quickly onto his neighbour’s land than would normally be the case, he will not be liable, provided he does not collect it in any way.  However, if he causes more water to be discharged from his land onto his neighbour’s land than would normally be the case, or collects the drainage of his land into one place and discharges a concentrated flow of water onto his neighbour’s land (as is the case in the above example), he will be liable in nuisance for any damage caused (Hurdman v North Eastern Ry (1878) 3 CPD 168) , Whalley v Lancs & Yorks Ry Co (1884) 13 QBD 131.)

3. A landowner blocks a drainage pipe on his land which usually takes surface water safely under a railway embankment.  As a result¸ a lake forms beside the railway, causing damage and disruption. 

It is highly likely that the landowner will be held liable for causing a nuisance.  In Sedleigh Denfield v O’Callaghan [1940] AC 880 the Defendant was held liable for flooding caused by a blocked drainage pipe constructed by the previous owner of the land.  A grating had been fitted to the entrance to the drainage pipe to prevent leaves and other debris blocking the pipe but it had been fitted directly on the top of the pipe meaning that, during a heavy rainstorm, the pipe became choked with leaves and the overflow from the pipe caused damage to the claimant’s premises.  The House of Lords held that the Defendant had adopted the nuisance (i.e. the faulty grating).  This is because the owner of land on which a nuisance has been created by another person is liable if he allows the nuisance to continue.  

This Loss Prevention Alert is, of necessity, generic and is not intended to be a complete or comprehensive statement of the law, nor does it constitute legal or specialist advice.  It is intended only to highlight issues that may be of interest to AGS members.  Neither the writer, nor AGS, assumes any responsibility for any loss which may arise from accessing, or reliance on the material and disclaims all liability accordingly.  Please take professional advice before you apply the content of the alert to your particular circumstances. Further information and advice is available through the AGS Legal Helpline.

Prepared for the AGS by Zita Mansi BLM in July 2011