July 15, 2019 – In Texas, water law generally applies to either groundwater or surface water rights. Surface water is defined in the Texas Water Code Section 11.021 as “water under ordinary flow, underflow and tides of every flowing river, natural stream, lake, bay, arm of the Gulf of Mexico, and stormwater, floodwater or rain water of every river, natural stream, canyon, ravine, depression, and watershed in the state.” Diffused surface water is water on the surface of one’s land that has not yet entered a ‘watercourse’ and that instead is owned by the owner of the land over which it flows. Examples of this diffused water include water flowing on the ground from melting snows or falling rain and which continues to be such until it reaches a bed or channel in which the water is accustomed to flowing.
Often legal problems may arise when one landowner interferes with the natural flow of surface water running across their land. Commonly that land owner may build improvements or prepare a parcel of property such that the natural flow of surface water may be increased and is diverted onto his neighbor’s property. When the adjacent landowner realizes an increased amount of water onto his property due to such diversion, damages may occur. Under the Texas Water Code Section 11.086 an owner whose property is injured by an overflow of water caused by an unlawful diversion or impounding of surface water by a neighbor may recover damages occasioned by the overflow. The injured property owner may also be entitled to seek injunctive receive from a court requesting an order requiring his neighbor to ‘reverse’ or ‘undo’ the changes made to the natural flow of surface water.
In years with extraordinary rainfall, questions may also arise as to whether a neighbor has really diverted water to an adjoining land lower, or whether a specific extraordinary rain event is the sole problem.
Racy L. Haddad is a Director in the Real Estate practice in the firm’s Austin office. She has an extensive background related to property issues, and she provides her clients guidance as a real estate professional, accomplished litigator, and a CEO focused on business and individual profitability. Her diverse real estate and litigation practice includes complex cases involving commercial and residential acquisitions, development, leasing, real estate brokerage, real estate finance, title issues, disposition of property, and construction law.