(This is the final part of a three-part series of columns on water rights.)

When I was a boy a neighbor of ours built a wooden fence around his horse pasture. It had large posts and wide rails, and was painted with dark paint right down to the ground. When spring came and the snow melted I was surprised to see a large section of unpainted wood at the bottom of each post. I was confused. Had the snow eaten away the paint? Had our neighbor started pulling up the posts?

When I asked my dad what had happened he explained that when water freezes it expands, and the water in the ground pushed the posts up when it froze and expanded. If the fence posts had only been buried below the frost line they would have been able to resist the upward pressure caused by the ice in the ground. Like every child who has ever watched the incoming tide destroy their sand castle, I knew the power of water on land, but this was the first time I became aware of its subterranean power. Whether above ground or below, water is a force to be reckoned with.

The U.S. Department of the Interior estimates that 1,430 cubic miles of rain water falls on the conterminous (48) United States every year. That is enough rain to cover the entire area under 30 inches of water. All of that water brings opportunities and risks for property owners. In this final part of our three part series on water rights we will examine some of the key legal principles applicable to surface and subterranean water.

“Surface water” does not refer to lakes, ponds or streams, but rather is the water that flows over land without any distinguishable path and without forming any distinguishable body of water (i.e., rain water). Every property owner has the right to use and collect the surface water on their property, as well as the right to lawfully discharge it onto their neighbor’s property. But what is a “lawful” discharge of surface water? As a basic rule, a property owner who leaves his or her property in its natural condition is not required to prevent or limit the flow of surface water onto a neighbor’s parcel. But is it lawful to alter your property in a way that increases the flow of surface water onto your neighbor’s property? The answer depends on the manner of the alterations.

Under New York law, every property owner is allowed to improve their property, even if it adversely impacts the flow of surface water. The only requirement is that the improvements are made in good faith for the purpose of developing the property. You cannot use artificial means like pipes and ditches to drain surface water onto your neighbor’s property, but you can use grading, berms, and swales to improve drainage as long as they are reasonable and made in a good faith effort to improve your property.

“Subterranean water” is water that exists entirely below the surface of the ground. Whether it is flowing or fixed in a single location is irrelevant. Property owners have the right to reasonably use and collect subterranean water below their property. That right, however, does not allow you to deplete an underground reservoir to the point that your neighbor’s property shifts, or to do things on your property that contaminate the water of your neighbor’s underground well. As with surface water, the use of subterranean water should be reasonable and done in good faith.

Because of its destructive potential and economic value, the use of surface and subterranean water frequently results in disputes. A good lawyer cannot only help you navigate these disputes, but can help you avoid them as well. Taking proactive steps to consider water rights when purchasing property or undertaking a new project can reduce the risk of later disputes with neighbors. In sensitive watershed districts the use of storm water management tools like rain gardens can also help reduce the risk of environmental degradation and resulting lawsuits. The key is for property owners to consider the impacts and benefits of surface and subterranean water before an issue arises.

Terence Robinson is a Partner at Boylan Code LLP, a full service law firm with more than fifty legal professionals focused on serving you, the client. Offices are conveniently located in Canandaigua, Newark, and Rochester. This article is not legal advice.
Email: trobinson@boylancode.com

To read the published article in the Daily Messenger, click here.