May 17, 1994
You have the following questions:
1. Is the city liable for the drainage of storm water from the someone's property onto certain other property belonging to someone else (who will be referred to in this letter as John Smith)?
2. Does the city have any legal obligation to develop a stormwater management program?
The answer to both questions is no.
In order to insure that I had an accurate storm water drainage engineering perspective on the questions, I asked Elwyn Bembry to accompany me on a site inspect of the area. We did so on April 14 in company with you, John Smith, two alderpersons, and the County engineer who designed the County landfill detention basin. In addition one of John Smith's neighbors who appeared to be at least in his 70's and who has lived his entire life on the property north of John Smith's property, had some observations about the flow of water in the area in question during his lifetime. Mr. Bembry's report to me is attached. My legal analysis of your questions will include references to his report, my own visual observations, and comments by parties interested in John Smith's drainage problem.
The Natural Flow Rule
Water law in Tennessee is governed by the natural flow rule. Simply put, that means that water must be allowed to flow where it would naturally flow (which is obviously generally downhill along the path of least resistance), that an upper landowner has a natural easement for water draining from his property onto the property of a lower landowner in its natural path, and that the lower landowner is required to accept such water as would naturally flow onto his property.
The Legal Significance of the Landfill with Respect to the City
The County landfill is located entirely outside the city, and the city has no control over its operations. Even if the landfill could be blamed for the drainage problem on John Smith's property, a municipality is not liable in any way for a drainage problem occurring either inside or outside the municipality unless it has itself interfered in some way with the natural flow of the water. Here the Town has done absolutely nothing that constitutes the diversion, deflection or concentration of water onto John Smith's property. [See Slatten v. Mitchell, 22 Tenn. App. 547, 124 S.W.2d 310 (1938); Dixon v. Nashville, 29 Tenn. App. 282, 203 S.W.2d 178 (1946); Miller v. City of Brentwood, 548 S.W.2d 878 (1977); Butts v. City of South Fulton, (Tenn Ct. App. 1977); Yates v. Metropolitan Gvt. Nashville & Davidson County, 451 S.W.2d 437 (1969)]
However, my own observations tell me that the County landfill is not the source of the problem. While I am not an engineer, it appears to me that all the water that comes out of the detention basin reflects the natural flow of that water. With respect to the northern stream that is the source of the water flow causing John Smith concern, it appears to me that the drainage basin does two things: at least to some extent reduces the volume of water, and extends the time of the flow of water that naturally drains from the northern stream. During periods of heavy rainfalls before the construction of the detention basin, there must have been at least short term torrents of water flowing though both the northerly and southerly streams; the drainage basin must considerably ameliorate those torrents. Incidentally, it should be pointed out that this area has had unusually heavy, if not record, rainfall between January 1--April 14, 1994. Surely, the heavy rains have put all watercourses in the area to the test during that period.
Drainage from the First Party's Property onto John Smith's Property
The city is not liable for any water that drains from the first party's property onto John Smith's property for the same reason it has no liability for stormwater drainage from the County landfill: Nothing it has done has caused the problem.
As Elwyn Bembry's report states, and my own observations confirm, stormwater draining from the northerly stream flows across the first party's property. Apparently, it periodically flooded the basement of the their home sitting on that property. For that reason, they dug a shallow ditch behind the home. The ditch runs south parallel with the west side of the major road, and diverts the stormwater away from the home and into a pond adjacent to the west side of the major road. The pond drains into a culvert that runs under the major road (which was undoubtedly installed by the state, probably when the highway was built many years ago), and onto John Smith's property.
Elwyn Bembry's report says that, "a visual scan would show that John Smith's property was always receiving the water, but this is an amateurish opinion only, which can be confirmed by an exact field survey coupled with historical witness by elderly residents who have lived in the area." My opinion is, of course, even more amateurish, but my "eyeball" survey also indicates that the stormwater in question naturally flows into the pond, and into the culvert running under the major road and ultimately onto John Smith's property. It is true that the diversion ditch on the original property channels the stormwater, but even absent that ditch, it appears to me that the stormwater would naturally flows across the original property southward into the pond and through the culvert, except for the water that would flood the the original party's basement. In fact, the culvert directing the water under the major road seems to be placed exactly where the stormwater would flow were there no major road. The first party's ditch may concentrate the flow of stormwater into the pond and through the culvert somewhat, and may slightly increase its volume by ultimately channeling onto John Smith's property stormwater that would otherwise have flowed into the the first party's basement, but roughly all the stormwater that John Smith's property is accepting is stormwater that would naturally flow onto that property. John Smith's property is simply the low point in the area.
The neighbor, who claims to have lived in the immediate area all his life says that the stormwater at issue has "always" flowed onto John Smith's property. He claims that in his lifetime John Smith's property has been flooded to a far greater extent than it flooded during the period January 1--April 14. Obviously, testimony from other residents familiar with the area may or may not differ from the neighbor's testimony, but a reasonably intelligent person standing on the first party's property with an eyeball gage can conclude that he is probably right as to the historical direction, if not the historical quantity, of the stormwater.
In any event, none of that is the city's doing; and whatever improper diversion and/or concentration of stormwater there might be, if any, is a legal problem between the first party and John Smith and perhaps other upper landowners.
One of the solutions to this problem suggested by Elwyn Bembry is a diversion by the city of some of the stormwater by piping it northward, presumably on the west side of the major road, then through a culvert of some kind across the major road. I strongly caution the city against an undertaking of that kind. I certainly can't dispute the soundness of that solution from an engineering standpoint, but it is my opinion that because the stormwater does not flow naturally in that direction, the result of that solution is that the city would itself violate the natural flow rule and would be responsible for any stormwater flowing on the property of property owners on the east side of the major road. Inevitability there would be some.
Stormwater Drainage Management
The city has no obligation to develop a stormwater management program; that is a planning decision over which the city has discretion. In other words, the city can chose to have such a program or not to have such a program; it is not liable for its decision not to have one. [See Chattanooga v. Reid, 103 Tenn. 616, 53 S.W.; Bowers v. City of Chattanooga, 826 S.W.2d 427 (Tenn. 1992); unreported case of Rucker v. Metro. Gvt. Nashville & Davidson County, Tn. Ct. App. No. 89-165-II, filed Nov. 28, 1990].
But if it decides to have such a program, it is liable under the Tennessee Tort Liability Act [See Tennessee Code Annotated, section 29-20-101 et seq.] for the negligent exercise of that discretion. Cities involved in stormwater management get into the business of telling developers and builders what they can do and cannot do that has a potential flood impact, and into the acquisition of drainage easements, etc. Mistakes with serious consequences are easy to make in this area, even by sophisticated cities. [See Winn v. Tucker Corp., 848 S.W.2d 64 (1993)] It may even be that a municipality in Tennessee is liable if its stormwater management program relies on the "wrong" base storm. [See 57 Am. Jur. 2d, Municipal Etc. Tort Liability, 187]
A municipality in Tennessee is also liable under the same Act for defective, unsafe and dangerous streets, sidewalks and highways and the dangerous and defective condition of any public building or structure, both of which have potential liability implications for municipalities where such streets, highways, and public buildings and structures, etc. are responsible for flooding problems. Of course, the city is liable for any flooding problems those cause in any case, but storm management programs usually require a city to ultimately build flood control facilities of one kind or another, and to intervene in flooding problems, that it otherwise would not have built or become involved in. Such construction and involvement often results in the city's streets and structures being a part of a flood control program to an extent the city never anticipated when it made the decision to get involved in that area.
But stormwater management programs make good sense for some cities. Uncontrolled development can reach a point that flooding problems become a general problem in a city. Wise cities get ahead of the development curve. However, stormwater management is an expensive, difficult and continuous burden for a "poor" city. When a city adopts a stormwater management program, every stormwater problem, no matter how minor or heretofore private, becomes the city's problem. It makes no sense for a town that cannot afford to perform even minimum traditional municipal services to get involved in that business. It is a fine idea for a city or town to be forward thinking, but a city or town can also forward think itself into administrative and liability problems far beyond its capacity. I suspect your city is in that category.
There may be things a city can do to control flooding short of a full-blown stormwater management program. Controls can be placed on both present and future development that maximizes flood control but minimizes municipal liability. However, even that effort generally requires considerable degree of local planning and engineering capability. At the point the city has that capacity (which appears far down the road), it would be wise for the city to talk about such controls.
Let me know if I can help you further in this or any other matter.
Sidney D. Hemsley
Senior Law Consultant