Q: My neighbor (NNN) has installed a berm that is causing water to back up in my yard. Do you know if he can do this or not? It gets much higher and even after it’s gone (2-3 days), it leaves a muddy, soggy mess. There was never a problem before the berm was installed. The fence is at a low point between our two yards and water used to disperse evenly over a large area between both yards.

A: I am not a lawyer…but I did ask this very question of an esteemed barrister in 1991.

He gave me portions of the Mercer Law Review (Vol 13: “Some Principles of Water Law in the Southeast”) to read. It states that Georgia follows the Civil Law doctrine regarding surface waters. The Civil Law rule “imposes a right and a duty upon every landowner to receive water naturally flowing onto his land from that of his neighbor.” (Mallard vs Pye, 215 Ga. 645, 112 S.E.2d 620).

My interpretation of this is that your neighbor can not restrict the flow of your water onto his land to the detriment of your property.

You now get to decide whether to have a friendly conversation with him…. or go to small claims court…. or get a lawyer to force him to remove the berm. Good luck!

Give your lawyer the citation above and see if this is the current interpretation of the courts.

June 23, 2003
Follow-up memo from a lawyer

Under Georgia law anything that “causes hurt, inconvenience, or damage to another” constitutes a nuisance from which a landowner can seek relief. (Official Code of Georgia Annotated, Title 42 Nuisance, Section 1.1)

The common law rule concerning the flow of water over unto a neighbors law states that “Where two city lots adjoin, the lower lot owes a servitude to the higher, so far as to receive the water which naturally runs from it, provided the owner of the latter has done no act to increase such flow by artificial means.” Cox v. Martin, 207 Ga. 442 (1950). This means a landowner has no right to concentrate and collect water as to cause it to be released in greater quantities in a particular location or manner different from what would occur if the flow of rainwater were left to the law of gravity. (Mayor & Council of Albany v. Sikes, 94 Ga. 30). However, the fact that water flows through a downspout is not indicative of collection or concentration. (Cox v. Martin, 207 Ga. 442 (1950)).

You may have a valid nuisance claim against NNN. NNN has impeded the natural flow of water from your property and caused it to collect in your yard. The collection of water in the yard of another is considered a substantial interference with the use and enjoyment of another’s property for which relief will be granted under Georgia common law. (Hendrix V. McEachern, 164 Ga. 457 (1927)). However, your downspout may be contributing to the collection of water attempting to flow over into NNN’s property. If this is the case, there would not be a cause of action against NNN because the flowerbed is blocking a nuisance rather than the natural water flow. In Georgia, the court has placed the burden of proving that the flow of water is in fact natural on the plaintiff. Therefore, you would have to prove that your downspout is either a natural flow or not contributing to the collection of water in order to recover. This is possible since the flooding condition had not occurred until NNN built his flowerbed. Generally, when the court has held that the plaintiff is directing water onto the land of the defendant there is a clear directing or focusing of water (substantial grading, paving, or change in the character of the land). The court has not articulated a manner for deciding whether a downspout is artificial or natural means of directing surface water. The outcome of a suit against NNN under Georgia common law nuisance theory would probably hinge on this issue.

Additionally, both parcels are subject to Real Covenants enforceable by the subdivision Home Owners Association. The covenants require that no grading blocked any natural swale, ditch, or drainage structure. NNN’s grading has certainly blocked the natural flow of water. Whether the flow qualified as a swale, ditch, or drainage structure is unclear. Additionally, the covenants require a written request and approval before grading a parcel. NNN is probably in breach of his real covenant with the subdivision. Because all landscaping actions are subject to the Home Owners Association approval, the disapproval of the grading would be essential to a suit for breach of covenant.