Legal Question in Real Estate Law in California
WATER DRAINAGE ISSUE - BACKGROUND INFORMATION:
Water, dirt and debris from my neighbor's property flow on to my concrete driveway and into my drain pipe from weep holes in a block wall dividing our properties. On my neighbor's side of the block wall is a concrete walkway. I recently discovered that there is a spout designed in the walkway to direct the flow of water into the weep holes - and onto my driveway. I learned that this spout is against civil code.
My drain pipe, which collects this water, dirt and debris, is adjacent to my garage entrance. Over the years this dirt has significantly contributed to silting up my drain and drain pipe. Due to this situation, the entire entrance to my garage must be fortified with sand bags, and my stored belongings are elevated on pallets. My garage had 4 inches of standing muddy water during a severe January storm.
Two contractors told me to seal up the weep holes. QUESTION: Can I legally seal up the weep holes to stop the flow of water, dirt and debris from my neighbor's property?
Thank you.
2 Answers from Attorneys
If the weep holes are on your side of the property line, you can close them. You can also sue the neighbor for damages and to have the spout that sends water onto your property removed.
First, I wouldn't too hastily conclude that the spout is against the Civil Code. I would challenge anyone to point out the language. The Civil Code might make some references to flowing water, but most of the law giverning your situation is judge-made law from cases ancient and recent and in between.
I see two potential difficulties with any legal action against the neighbor. The first is whether the neighbor has established a prescriptive easement for the discharge of water in this manner. If the construction features you describe have been in place more than five years, including previous ownerships of the properties, the arrangement may be a prescriptive easement for the discharge of water.
The other possible problem is whether the artificial arrangement is more unreasonable than natural discharge. That is, if no one had ever built anything on the neighbor parcel, and the water drained entirely naturally, would things be any better for you? Maybe the natural flow would cause more erosion and silting on your property, not less. If so, you probably don't have a solid case. Concentrated discharge of surface waters onto a lower neighbor's property must be "unreasonable" to be unlawful.
For a general discussion of the law on unreasonable discharge of concentrated surface water, see Keys v. Romley (1966) 64 Cal.2d 396, an important California Supreme Court decision on this subject. For a Cal. Supreme Court decision on prescriptive easements for the discharge of water, see Hails v. Martz (1946) 28 Cal.2d 775.
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