When New Construction Disrupts Natural Water Flow

By Jonathan Fontenot

With all the new construction and the rebuilding from Hurricane Laura requiring loads of dirt, a common question is “what if the owners of the adjacent property build up the land and change the drainage onto my land?”  

The short answer is: Absent a waiver or permit, no one can change the path of natural drainage.

Articles 655 and 656 of the Louisiana Civil Code are on point.

655: “An estate situated below is bound to receive the surface waters that flow naturally from an estate situated above unless an act of man has created the flow.”

656: “The owner of the servient estate may not do anything to prevent the flow of the water. The owner of the dominant estate may not do anything to render the servitude more burdensome.”

Put another way, a landowner has to accept it if the natural drainage occurs on his land. Water from the high ground drains onto low ground, and the owner of the low ground cannot challenge, divert or disrupt the drainage.

However, since the law is clear that natural drainage cannot be tampered with, it is implied that unnatural, or man-made (such as when soil is brought in to build up the land), drainage does not have to be accepted by the neighboring landowner.  

That is the basic law. What to do about it?  There are several suggestions to prepare just in case the matter has to be settled in court.  Of course, start with some written communication — certified mail, email — to the other landowner putting them on notice that you do not want the natural drainage to change. If that has no effect, then you can begin to document all the dirt brought in, preferably with pictures.  And if it is not too financially draining, consult an engineer or surveyor to locate documents that prove whose land is the “high ground” and where the natural drainage flows.  

Hopefully the amount of new dirt will be the normal “growing pains” of construction and will not affect the water flow. But since hardly anyone wants a new route for water to flow over their property, it is better to be prepared. This may allow you to stop it before it actually starts to happen. You will thank your lawyer later, if that is the case!

Local attorney Jonathan “Law Dawg” Fontenot answers legal questions on the Lawtalk Podcast along with his co-host, attorney Mark Judson on the Lawtalk Pro Catch the show on lawtalk.pro.