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(A version of this article appears in the California
Construction Law Reporter, published by the West Group.)
By James E. Acret
Lower
landowners claimed that landscaping by upper landowners
caused flooding by channeling an 8,900-square-foot drainage
area into the lower owners' 354-square-foot rear walk, flooding
and severely damaging their home. The upper owner alleged
that the lower property was inadequately drained even though
the lower owner was aware of the problem. The trial court
instructed the jury on negligence and contributory negligence
theories and rejected the following proffered instruction:
An
upper landowner is liable to a lower landowner where there
is a discharge resulting in damage to the property of
a reasonable lower landowner: "(1) if the upper owner
is reasonable and the lower owner is unreasonable, the
upper owner wins; (2) if the upper owner is unreasonable
and the lower owner is reasonable, the lower owner wins;
(3) if both the upper and lower owners are reasonable
the, [sic] lower owner wins."
Reversed
in Louie v. Gdowski, ___ Cal.App.4th ___, ___ Cal.Rptr.2d
___, 2000 Daily Journal D.A.R. 12591 (2000). Surface water
flooding problems are not resolved under ordinary theories
of negligence. The seminal case is Keys v. Romley,
64 Cal.2d 396 (1966), where the court held:
If
the actions of both the upper and lower landowners are
reasonable, necessary, and generally in accord with the
foregoing, then the injury must necessarily be borne by
the upper landowner who changes a natural system of drainage,
in accordance with our traditional civil law rule.
If
both the upper and lower owners are reasonable, the lower
owner wins, but the instructions actually given improperly
absolved defendants of liability if their actions were reasonable.
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