December 17, 1996
You have the following question: Is the city liable when it issues a building permit when the project to which the building permit pertains causes a drainage problem? Apparently, a property owner in the city is experiencing a flooding problem and contends the city is liable because it issued a permit for construction that is the source of the flooding. The answer is clearly no, unless the city itself has done something that interferes with the natural flow of water and causes the flooding.
Your express question arose in Miller v. City of Brentwood, 548 S.W.2d 878 (Tenn. App. 1977). There certain property owners living in a subdivision sued the city for granting building permits for construction on land above the subdivision, claiming that the construction reduced the absorption of the soil and increased water runoff in the subdivision. The Court rejected the property owner's claims on essentially four grounds:
1. No court had been so bold as to hold a local government liable for failure to assure that a building project would not injure its neighbors before issuing a permit for construction. To initiate such a rule, continued the Court, would make it necessary for every municipality to require indemnity bonds from builders in fantastic amounts before issuing permits for construction, in which case the cities would be the liability insurers upon each building constructed with permission of the city.
2. The watershed that drained into the drainage ditch that flooded the subdivision property was not entirely within the city, and construction outside the city contributed to the flooding.
3. The natural flow rule prevails in Tennessee. Under that rule, the lower landowner is the subservient estate and the upper landowner is the dominant estate, and the lower landowner must accept water that naturally flows from the upper to the lower land. It was inappropriate for the city to impair the usefulness of vacant property to protect property upon which construction had already been completed. For the city to do so would have the effect of transferring the subservient status of the subdivision property to that of upper landowners; that is, reversing the order of subservience as recognized by Tennessee law, and of exercising a sort of favoritism in favor of land already improved over land not yet improved.
4. There was no authority to compel a city to construct an artificial drainage sewer.
That did not mean that the subdivision property owners had to accept an unnatural flow of water from the upper landowners. However, their action was against the upper landowners who caused the problem, not the city.
In M. Al-Abdulla v. Riverview, Ltd, Tenn. App., MS., filed Sept. 28, 1994, M. Al-Abdulla and his wife sued the City of Murfreesboro and a developer, alleging that the city was negligent for approving the plan for a subdivision that connected to a piece of property they owned that adjoined their backyard, without providing for the adequate drainage of surface water, and that the developer was liable because it developed the subdivision without providing for adequate surface water drainage. Citing Miller, the Court held that there was no right of action against the city for issuing the permit. [The developer was also held not liable because the M. Abduallas' property was clearly in a floodplain, a fact the M. Abdullas knew when they bought the property.]
The city is liable for the flooding arising from something it has done that interferes with the natural flow of the water when that interference is the source of the flooding. In that respect a city stands in the same situation as any property owner. If the city has done nothing of that kind with respect to the property owner in question, the flooding problem is between him and landowners in the areas who are the actual source of the flooding. [Yates v. Metropolitan Government of Nashville and Davidson County, 451 S.W.2d 437 (Tenn. 1970); Dixon v. Nashville, 203 S.W.2d 178 (Tenn. 1948).]
Sidney D. Hemsley
Senior Law Consultant