Legal Question in Real Estate Law in California

Re: private storm drainage easement

California's law regarding flow of water from an uphill parcel to a downhill parcel is as follows:

No easement is necessary for the normal, natural flow of water from parcels higher up onto lower-lying parcels. Further, natural downhill flow is never an actionable nuisance or trespass. That's just the way things are in nature, and the law won't touch it.

Things get more complicated when the runoff pattern is altered by development, such as grading or diking your property, paving or building on a large portion of it, or other normal development activities that alter the volume, velocity or concentration of the runoff. Then, the courts can and will get involved; but the result is not that all uphill activity altering water flow is improper, unreasonable or actionable. An uphill neighbor can still modify the natural flow of water, so long as he/she/it does so reasonably. Further, the downhill neighbor cannot act unreasonably, for instance by building a dike to prevent the water from running onto the downhill property from above. The reasonableness of concentrating your runoff depends upon whether it is a minor change that is necessary in connection with a large benefit. For example, a 5% increase in runoff would probably be a reasonable side effect of building a house on a vacant lot.

OK, with that background, on to your situation. Easements usually involve two (or more) parcels of adjoining land, at least one "benefitted" parcel and at least one "burdened" parcel. When you say the neighbor downhill "has" an easement, are you saying that he is benefitted by this easement and someone even further downhill is burdened, because they have to receive his concentrated runoff? Or do you mean that there is an easement across this neighbor's property that benefits you? If the latter, no problem.

If the former, however, and you have no easement benefitting you, you have three choices, I'd think: (1) keep the flow off your property 100% natural; (2) alter the natural runoff onto the property below, but keep it reasonable; or (3) negotiate for the right to use the easement across as many of the downhill properties as necessary until the water reaches a natural watercourse.

The fact that part of a drainage inlet is on your property does not necessarily mean that you have a right to use it; it only suggests a possible unlawful encroachment onto your property.

Finally, artificially-modified runoff can be the subject of an easement by prescription if the modification has been in effect for over five years and does not prevent the downhill owner from making use of his land.

Re: private storm drainage easement

I have done significant work with easements. The easement does not sound like it is the main issue. I would need more information to assist.

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