Neighbor Can’t Sue for Stormwater Drainage

A property owner who alleges her neighbors have caused rain and storm run-off from their adjacent lots to drain onto her property, causing standing pools of water and mosquito breeding, has failed to state claims for trespass, nuisance or negligence with allegations that one neighbor dumped a load of gravel onto his driveway raising its elevation and the other neighbor dumped mulch on its property; the Virginia Supreme Court affirms dismissal of these claims and plaintiff’s negligence per se claim.

Virginia applies a modified common law rule to surface water. Under this rule, surface water is a common enemy and each landowner may fight it off as best he can, provided he does so reasonably and in good faith and not wantonly, unnecessarily or carelessly. A landowner may not injure another by interfering with the flow of surface water in a natural channel or watercourse which has been worn or cut into the soil.

Applying the definitions of trespass, nuisance and negligence in conjunction with the modified common law rule applicable to surface water, we hold that the trial court did not err in sustaining defendants’ demurrers to plaintiff’s claims for trespass and nuisance.

Plaintiff’s second amended complaint only contains specific factual allegations that one defendant added gravel to their parking lot and graded it and the other defendant put mulch on their property and “made other modifications” to the property. Plaintiff had the burden to allege sufficient facts that would support a finding that in filling in their lots the defendants had acted wantonly, unnecessarily or carelessly. We have held that a property owner may, in the reasonable development of his property, grade it and not be liable for discharging the additional diffused surface water. Because the only facts in this case indicate defendants dumped gravel and/or put down mulch, plaintiff failed to plead any facts from which one could conclude that defendants acted recklessly or carelessly in modifying their properties.

A simple factual recitation that defendants did what the common law allows them to do in maintaining their properties and a bare legal conclusion that they did so negligently is insufficient. Plaintiff’s complaint contains no facts to support a finding of negligence by either defendant when they modified their properties as permitted under Virginia’s modified common law rule regarding surface water.

The circuit court did not err in dismissing plaintiff’s claims for trespass, nuisance and negligence.

Plaintiff also has failed to state claims for negligence per se under Norfolk City Code § 27-2(a), public nuisance and City Code § 36-17(b), prescribing lot drainage regulations under the rat and mosquito control chapter.  Neither ordinance contains a provision for a private right of action like that asserted by plaintiff. Nor is she a member of the class of persons these ordinances were designed to protect.

Judgment for defendants affirmed.

Collett v. Cordovana (Powell) No. 141297, June 4, 2015; Norfolk Cir.Ct. (Martin) Kevin E. Martingayle for appellant; Todd M. Fiorella, Christopher J. Wiemken, James E. Brydges Jr. for appellees. VLW 015-6-053, 11 pp.