Page 21 - Mar-Apr2023 Vol40 No7

FROM MTAS EXPERIENCE

The City’s Role: Example 3:

From: Sid Hemsley, MTAS Senior Law Consultant
Regarding: 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 …(the)... 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 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.
…The first party’s ditch may concentrate the flow of stormwater into the pond and through the culvert
somewhat, 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. ….

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