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Specializing in Environmental Law and Real Property Law

Primer on Surface Water

Spring time in Michigan inevitably brings with it flooding problems. The first step in resolving a flooding issue is determining whether the offending water is in a natural watercourse or merely represents the natural flow of surface water. The character of the water determines which set of rules apply.

Surface water is water on the surface of the ground, usually created by rain or snow and of a “casual or vagrant character.” It follows no definite course and has no substantial or permanent existence. Fenmode, Inc. v Aetna Casualty & Surety Co., 303 Mich 188, 192 (1942). Surface water is lost by percolation, evaporation or by flowing into some defined watercourse or body of water. 

The Michigan Court of Appeals recently reiterated long standing Michigan law on the flow of surface water. In Wiggins v City of Burton, — N.W.2d —, 2011 WL 439465 (Mich. App.) the court stated it has been “settled law” in our state for more than a century that the natural flow of surface water from the upper or dominant estate forms a natural servitude that encumbers the lower or servitude estate. This means the owner of the lower estate is bound by law to accept the natural flow of surface water onto the lower estate. 

However, the right to flow surface water across the property of another is not without limitation. The owner of the upper estate has no right to increase the amount of water that would otherwise naturally flow onto the lower estate. For instance, the owner of the upper estate cannot by the use of artificial drains or ditches, collect the waters of his premises and cast them onto the landowner below him to his injury. In other words, the owner of the upper estate many not by changing the conditions on his land, put a greater burden on the lower estate by increasing and concentrating the volume and velocity of surface water.