Here we go again. The South Dakota Supreme Court decided another case this summer on surface water drainage. It is the perennial water problem in the state: some have too much water and some have too little. Neighbor versus neighbor. Mother nature does not distribute surface water or drainage equitably. The latest case decided by the Court is mostly right, and gives us an opportunity to look at what I call the grand inequity of surface water law. I am sure the ‘editorial board’ will not find these comments to their liking, but the comments should be made. To the devil with the editorial board.
We are taught that the stranger who dwelleth with you shall be unto you as one born among you. This stranger should be treated as a guest. Even so, this good rule applies to people, not things. Unwanted water is a thing. A neighbor’s surface water on one’s commercial, residential or ag land is an unwelcome guest. Let’s call it an unruly, inconsiderate, delinquent and disrespectful guest. And this can get problematic when it is a city or government doing the diverting.
East River drainage disputes occur more often, and can be more technically difficult on account of the land not having as much undulation. But the West River disputes are more entertaining as they can involve calls to the sheriff, communications suggesting a physical resolution of the pending dispute and other such florid utterances. Some of these problems are dreadful serious and impede land production. Some are so trivial you want to incarcerate the complainant for stupidity: why make a federal case out of water drainage from a swimming pool onto your land? Some would like to.
To make my comments on water drainage tactile, understandable and straight to the mark, I will use a dance analogy. Put your mindset into that of a ballroom dancer and we can begin our review. Fast dance: If you are the water-sending party and your efforts to drain your land cause water to flow over your neighbor’s land in a “sporadic and forceful’ way. That’s okay. If the water sits on the receiving neighbor’s land for only a short period of time, the world is good. That’s a fast dance. That’s okay. If the owner of the sending flow does not substantially alter on a permanent basis the course of flow, the amount of flow, or the time of flow, that’s okay. It appears some landowners are in need of lessons in the samba, rumba, cha-cha and even the East Coast Swing.
Slow dance: If the sending flow from your neighbor’s water is continuous, slow and causes water to stay on your land rather than quickly flow over it or flow through it, this is what the SD Court called “unnatural or unusual.” That is a no no. Slow or standing water of course prejudices the receiving landowner’s use of the land. (Funny how the state can prejudice one’s use of the land in the case of non-meandered lakes but private neighbors can’t do it) There can be no slow dancing with your neighbor if you are trying to get rid of your surface water. This is the rule even if the slow moving water is going over a natural watercourse. So don’t ask your neighbor to do a slow dance with you. Now, to make the dance card a bit more complicated, the latest case also suggested that the receiving landowner does not have a special duty to remove naturally occurring obstructions on the watercourse just to make the water move faster.
Are there remedies for these neighbor versus neighbor problems? Yes there are. I have developed some. That’s for another conversation.
David Ganje of Ganje Law Offices practices in the area of natural resources, environmental and commercial law.
