A trespass is an intrusion of a physical and tangible object onto the land of another without permission. In some cases, surface water flowing from a neighbor’s property onto yours is considered a trespass in Michigan.
“Surface waters” are “waters on the surface of the ground usually created by rain or snow, which are of a casual or vagrant character, following no definite course and having no substantial or permanent existence.”
If surface water naturally flows from one property to the other, then there is no trespass. If, on the other hand, an owner or occupant diverts surface water to an adjoining property by artificial means where that water had not previously flowed (e.g., using a downspout extension), the adjoining property owner may assert a trespass claim. The same is true if a change in the natural topography of a property increases or diverts surface water.
If water is causing damage to your property, you are entitled to recover. The Supreme Court of Michigan made clear that you do not have to prove that the neighbor was negligent. Similarly, you do not have to show that your neighbor’s conduct violates an ordinance or other law. However, you must show that the neighbor intentionally graded and/or built downspouts causing waters in excess of natural flowage to be channeled and concentrated onto yours.
If you are experiencing an issue regarding surface water runoff, contact us to schedule a free consultation to discuss your matter and the approach we can take to assist you.
Dalton & Tomich, PLC is the national leader in successfully helping churches, other religious institutions and their insurers defend their rights in land use and zoning matters under RLUIPA, the Religious Land Use and Institutionalized Persons Act. We have helped clients win cases against municipalities and other local government bodies from coast to coast, with experience serving both as general counsel and special litigation counsel.
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