Flooding and The Common Enemy Doctrine
Few things cause the kind of extensive and immediate damage to a home that a flooding incident does. All too often, flooding occurs without warning and the results are devastating and expensive to remedy. Sometimes it is a neighboring property owner’s actions that cause water to inundate an adjacent property, which is what gave rise to the “common enemy doctrine.”
In its strictest form, the common enemy doctrine allows landowners to dispose of unwanted surface water in any way they see fit, without liability for resulting damage to one’s neighbor. Currens v. Sleek, 138 Wn.2d 858, 861, 983 P.2d 626 (1999). “The idea is that ‘surface water … is regarded as an outlaw and a common enemy against which anyone may defend himself, even though by so doing injury may result to others.’” Sleek, 138 Wn.2d at 861 (quoting Cass v. Dicks, 14 Wn. 75, 78 44 P. 113 (1896)). However, because a strict application of this rule is widely regarded as inequitable, Washington’s Supreme Court has adopted three exceptions to the common enemy doctrine over the years. Sleek, 138 Wn.2d at 861-62:
- Although a landowner may block the flow of diffuse surface water onto their land, the first exception to the general rule provides that landowners may not inhibit the flow of a watercourse or a natural drain way. Island County v. Mackie, 36 Wn. App. 385, 388, 675 P.2d 607 (1984).
- Landowners cannot collect (i.e., accumulate) and channel it onto their neighbors’ land. Sleek, 138 Wn.2d at 862.
- The third and final exception is known as the “due care” exception. Under this rule, landowners may improve their land free from liability for damages caused by the change in the flow of surface water onto the neighboring property so long as the landowners act in good faith and by avoiding unnecessary damage to the property of others. Sleek, 138 Wn.2d at 864-65.
On several occasions, Washington courts have ruled that a landowner whose actions caused flooding or created adverse drainage consequences on a neighboring parcel may not assert the common enemy doctrine as a defense where the landowner failed to use due care to minimize the damage to the neighboring parcel. See Borden v. City of Olympia, 113 Wn. App. 359, 364, 53 P.3d 1020 (2002); Hoover v. Warner, 189 Wn. App. 509, 524, 358 P.3d 1174, 1182 (2015).
In sum, the common enemy doctrine stands for the proposition that a landowner is largely permitted to take any action to rid their land of unwanted surface water – subject to certain exceptions – but in all instances, a landowner is required to use due care to minimize damage to neighboring parcels. Inhibiting the flow of a watercourse or natural drain way, channeling water onto a neighbors’ land, or taking any action concerning surface or subsurface water without using due care may subject a landowner to liability.
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