July 3, 1996
Your question is, does Yates v. Metropolitan Gov., Nashville & Davidson County require the city to reimburse a certain property owner inside the city who has "piped" and covered the natural drainage easement that runs though his property? In my opinion, under the facts related to me, the answer is no.
The property owner in question is the third of fourth owner of the property. However, the plat for the development in question was recorded June 4, 1965. The building permit for the house on that property was issued on August 8, 1969. The original property owner, on his own initiative and without any involvement by the city, installed a concrete sweal along the sideline and across the rear line of the property for the purpose of directing storm water drainage from the property into a creek. The sweal did not follow the natural path of the water. The source of the storm water drainage is the city's pipe running under a city street. The installation of the pipe and the paving of the street occurred no later than 1969, and may have occurred as early than 1965. It was installed along the natural path of the water. Apparently cracks appeared at some time in the concrete sweal and the present property owner asked the city to repair the sweal. The city refused to do so. The property owner, also on his own initiative and without any involvement by the city, installed a subsurface drainage system to handle the drainage. The policy and practice of the city is that drainage problems on private property are the problems of those property owners.
Storm water drainage in Tennessee is governed by the natural flow rule. Under the natural flow rule, the lower property owner is required to accept the water that would naturally flow from the upper landowner; he is not liable for any damages that arises from that natural flow. [Slatten v. Mitchell, 124 S.W.2d 310 (1938); Dixon v. Nashville, 203 S.W.2d 178 (1976); Miller v. City of Brentwood, 548 S.W.2d 878 (1977); Butts v. City of South Fulton, 565 S.W.2d 879 (Tenn. App. 1978); Yates v. Metropolitan Gov., Nashville & Davidson County, 451 S.W.2d 437 (1969).]
In the case of the property in question, the city is the upper landowner and the property owner is the lower landowner. The storm water pipe under the city street was (and is) part of the street, and the pipe was installed consistent with the natural flow of the water in that area. Any violation of the natural flow rule was created by the original property owner when he constructed the concrete sweal.
In Yates, a property owner alleged that flooding of his property arose from ditches cut into a utility easement that ran from a street to a pumping station belonging to Nashville-Davidson County Metropolitan Government. However, the Court rejected the property owner's claim that Metro. was liable for damages arising from the flooding because there was no proof that Metro. put the ditches on the easement.
What the Court said about easements in that case is very important with respect to the property owner's claim that your city is required to pay him for his subsurface drainage system:
An easement does not constitute of a quantity of land, but merely the privilege to pass over the land. Thus, the use of an easement does not entail general supervision or maintenance of the land over which it passes but only to such as extent as it is necessary for the exercise of the privileges of the easement....
The holder of an easement has the right to use or alter the affected premises only as reasonably necessary for the use of the easement. Such holder has no right to exclude others from the use of or alteration of the premises so long as there is no interference with the easement privilege. For this reason, the holder of an easement could not be reasonably required to perform any maintenance, repairs or alterations upon the property over which the easement exists, unless such holder has made such maintenance, repairs, or alterations necessary by the manner of his use of the easement. Specifically, the Utility District and its successor, Metropolitan Government, had the right to come and go along the driveway, but they had no right or obligation to make any repairs or changes in the real estate unless their use of the easement made such repairs or changes necessary. It is not shown that the ditch or ditches complained of were necessary for, or incident to, or created by the traversal of the easement area by defendant or its predecessor, the Utility District.
.... the holder of the easement is responsible for proper maintenance of what he puts on the easement to facilitate his use of the easement. [Emphasis is the court’s.] [At 441.]
That language, standing alone, can be momentarily confusing as to the obligation of your city with respect to the city's storm water pipe that runs under the street and directs water onto the property in question. However, what must be kept in mind is that a drainage easement is a natural easement and that the natural flow rule applies in drainage easement. Under Yates, your city plainly has no general obligation to maintain the natural drainage easement, and it is not responsible for structures or other installations property owners place in the natural drainage easement. [Also see Miller.]
However, your city is responsible for the structures or other installations it places in the natural drainage easements, but only if those structures or other installations alter the natural flow of water. Storm water flowing onto the property in question flows through a pipe installed by the city and which is a part of the city street. But because the storm water that flows through that pipe simply follows the natural flow, Yates, and the other cases cited above, make it clear that the city is not liable for any damages caused by that natural flow of water. The concrete sweal installed by the original property owner, and the subsurface drainage system installed by the property owner in question, simply handle storm water that would naturally flow their direction. In fact, the original property owner directed the flow of storm water off its natural course by the construction of the sweal.
Yates clearly says that ".... the holder or an easement cannot be reasonably be required to perform any maintenance, repairs or alterations upon the property over which the easement exists unless such holder has made such maintenance, repairs or alterations necessary by the manner of his use of the easement." It is not the city's use of the easement which made such maintenance, repairs or alterations of the easement necessary, but the natural flow of the water, which the property owner in question, being the lower landowner, was legally obligated to accept.
Miller makes the same point in a different way. There landowners in a subdivision argued that the city was liable for flooding problems in the subdivision, principally on the grounds that the city issued the permit for the subdivision. The Court rejected that argument, declaring that, "The mere fact that a nuisance exists and has occasioned an injury to a third person, does not render the corporation liable therefore, provided the nuisance was not created or maintained by the corporation itself." [At 880.] A road, of which the city's pipe is a part, cannot be a nuisance. [See Butts.] However, Miller's point with respect to the property owner in question in your city is that simply because a private landowner suffers damage, the city is not liable for damage for which it was not the cause.
There is also a good possibility that even if the pipe installed by the city violated the natural flow rule, the city now has a prescriptive easement. If that is true, the "natural flow" is the path the water presently follows. A prescriptive easement may be created after 20 years of open, notorious and uninterrupted adverse use of land. In the case of drainage easements, the upper land owner may gain the right to run water onto a lower landowner's property in a path that contradicts the natural flow, or the lower landowner may also gain the right to back-up water on the upper landowner’s property contrary to the natural flow, whichever is the case. The prescriptive period beings to run when a cause of action arises. Generally, the cause of action is flooding. [See Hardwick v. Turnage, Tenn. App. 1994, 19 TAM 12-11. The original property owner’s construction of a sweal is probably sound proof that he encountered, or had knowledge of, a flooding problem. I suspect the sweal was built at the same time as the house, which was built in 1969. In any event, you would have to determine if the flow of water through the city’s pipe and onto the property in question has existed for 20 years. Under the facts, it is likely that the prescriptive period would continue to run from the original to the present property owner. In fact, both intervening property owners would undoubtedly have actual notice of the sweal at the time they bought the house.
Let me know if I can help you further in this or any other matter.
Sidney D. Hemsley
Senior Law Consultant