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PROP#246
Legal Definition
An owner can take protective measures to get rid of water (like build a dike), but they may not do unnecessary damage to others' lands.
Plain English Explanation
The common enemy theory treats surface water (like rainwater or floodwater) as a âcommon enemyâ that landowners are allowed to defend against. Under this theory, youâre free to take steps to protect your property from surface water, like building a dike, ditch, or drainage system to get rid of it.
However, thereâs a catch: while you can protect your land, you canât cause unnecessary damage to your neighborsâ properties in the process. So, if your drainage system ends up flooding the neighborâs yard or causes significant harm, you might be held responsible for that.
The idea is that you have the right to defend your property from water, but it has to be done in a way thatâs reasonable and doesnât create bigger problems for others.
However, thereâs a catch: while you can protect your land, you canât cause unnecessary damage to your neighborsâ properties in the process. So, if your drainage system ends up flooding the neighborâs yard or causes significant harm, you might be held responsible for that.
The idea is that you have the right to defend your property from water, but it has to be done in a way thatâs reasonable and doesnât create bigger problems for others.
Hypothetical
Hypo 1: Amy and Bob own houses at the bottom of a hill. Every time it rains, water flows down the hill and floods Amy's basement. Amy decides to build a concrete wall to block water coming down the hill. Now the water flows around Amy's wall and into Bob's house, flooding his basement. Result: Under the common enemy theory, Amy is liable for the damage to Bob's house and will likely have to take down her wall.
Related Concepts
In assessing groundwater rights, what is the absolute ownership doctrine?
In assessing groundwater rights, what is the appropriative rights doctrine?
In assessing groundwater rights, what is the correlative rights doctrine?
In assessing groundwater rights, what is the reasonable use doctrine?
In assessing groundwater rights, what is the restatement approach?
In assessing rights of streams, rivers, and lakes, what is the prior appropriation doctrine?
In assessing rights related to groundwater, what are the 4 doctrines to consider?
In assessing the rights of surface water use, what is the natural flow theory?
In assessing the rights of surface water use, what is the reasonable use theory?
In assessing water rights under the riparian doctrine, what is the natural flow theory?
In assessing water rights under the riparian doctrine, what is the reasonable use theory?
In assessing water rights under the riparian doctrine, which type of use prevails?
What are natural rights?
What is lateral support?
What is subjacent support?
What is the general rule for use of surface water on a property owner's land?
What is the riparian doctrine?
