My property is a 100 x 200 rectangle. One adjoining property owned by another family (The Pitts) is 80 ft wide and adjoins the last 80 feet of our top property line--like two dominoes. The Pitts land slopes at a pretty good angle into the Taylor land. The Taylor land slopes at a lesser degree but has a ridge in the center to guide Pitts draining water towards the back of our property and on down the hill. The water drainage system planned for these two lots when they first graded for construction in 1980 was sheet flow. The Pitts have built two obstructions to this drainage: in 2006 they laid down a line of landscape limbers snuggly end-to-end across their entire bottom border with our property which is in the middle of an incline. This became the first diversion collecting draining water and allowing it to run along the line of timers to exit in their lower right corner near our house! then last year in June of 2010 they laid down a line of paving stone (again fitted snuggley together) in a U shape to enclose their entire lower back yard which diverts even more water down and out the lower right corner towards our house building, some is sheet flow but the left and right sides form flumes and 2/3rds of the total drainage is concertrated thru a center hole about 48' wide which they lined with stones which I call the 'canal.' Question: their storm water drainage used to drain down the back third of our lot to our lowest & farthest corner and on down the hill. This drainage water is now being diverted out of their lowest righthand corner onto our lot near our house. Can they change the destination of this water? (Note: the U design on the last five feet of the back of their property includes plantings of a few azaleas and hostas, etc sandwiched between the paver border and the landscape timber border. Their back yard is mostly packed dirt so during a hard rain it acts like an aluminum sliding board carrying dirt and debris (silt?) down to deposit into our beautiful green, grassy areas. The rush and force of the water is digging trenches thru our property and depositing silt way down the hill.)
04/06/2011 |
Category: Real Property ยป Neighbor Rel... |
State: Virginia |
#24584
A landowner has a duty to prevent nuisances which might adversely affect the property of an adjoining landowner. A nuisance is a substantial interference with the right to use and enjoy land, which may be intentional, negligent or ultra hazardous in origin, and must be a result of a defendant's activity. If a nuisance interferes with another person's quiet or peaceful or pleasant use of his/her property, it may be the basis for a lawsuit for damages and/or an injunction ordering the person or entity causing the nuisance to stop or limit the activity. Abatement of a nuisance may involve elimination of a nuisance by removal, repair, rehabilitation or demolition. Liability to an adjoining landowner for injuries resulting from the improper use of one's property has been founded upon the legal theory of nuisance.
Trespass may also occur when a neighbor diverts water onto the property of another. An action for trespass exists when there is an intentional or negligent intrusion onto or into the property of another. The concept of trespass includes trespass by water.
Injunctive relief consists of a court order called an injunction, requiring an individual to do or not do a specific action. It must be proven that without the injunction, harm will occur which cannot be remedied by money damages. To issue a preliminary injunction, the courts typically require proof that
(1) the movant has a ‘strong’ likelihood of success on the merits;
(2) the movant would otherwise suffer irreparable injury;
(3) the issuance of a preliminary injunction wouldn't cause substantial harm to others; and
(4) the public interest would be served by issuance of a preliminary injunction.