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  1. #1
    Join Date
    Dec 2009
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    7

    Default Can Absent Land Owner Dam Up a Natural Made Storm Ditch

    My question involves real estate located in the State of: South Carolina

    My neighborhood has a little problem that occurs maybe 4 to 5 times a year. The area, especially that of myself and my neighbors on each side, slightly slopes down from the road. Today we received 3 to 4 inches of rain in a 12 hour period. My neighbors and I get the rain run off from our neighbors across the street (if the ground will no longer absorbed the rain) as well as the rain off the street. The rain from the street is a result of the street drains inability to take in so much water at one time. When this happens my backyard has water standing in it.

    Let’s start where this whole problem began. When I purchased my home from the estate of some dear friends (the house never went on the market, we settled on a price and a attorney conducted the close), there was also a piece of land the original owner owned that I had the option to buy. The .25 acre lot falls behind my neighbors home, and everybody around here knows what goes on with the lot when it rains . . . it becomes a lake. For that reason, plus I didn’t won’t to pay city/county taxes on it and because I knew the many restrictions the town and the subdivision placed on the lot, I didn't want it, and the lot was tossed into the estate auction. The auctioneer disclosed the restrictions on the property and that the lot turned into the neighborhood reservoir when it rained. Once all this was announced the bidding began There was some interest in the lot by my two neighbors who’s property also adjoined the small lot, but when the price went above $1,000 they stopped. Some woman that lives an hour away was bound and determined she was going to get that lot (I believe she went bid crazy) and got it for $1,500. Some time later she finally came back down to earth and got a reality check. She wanted to store firewood on the lot to sale in the winter, she wasn't allowed to do that. She was going to place a mobile home on the lot, she wasn't allowed to do that. Because the town requires that so many feet must be between a new dwelling and the road, there's no way the required "living area" 2,000 sq. ft. house can be built on the small lot (living area meaning livable space, an attached garage cannot be considered into the living sq. feet.). When she ran out of options, she mailed letters to the neighborhood offering to sell the lot for $3,000. She didn’t get any takers and a “For Sale” sign sat on the property of six months with no buyer.

    We can only guess her next actions was done in some sort of retaliation. Between my property and my next door neighbor runs a natural storm ditch that again, catches rain water when the street drains are unable to take in so much water at one time. No one dug this ditch, it was formed over 50+ years by rain water. The ditch is actually the property line. In October, she dumped a load of mulch onto the ditch where her property began to prevent water from continuing down the ditch. First, can she dam up the ditch? Second, if the ditch is the property line how do you half it? After noticing a very large amount of mulch the rain had transfered into my yard, I went out, in the pouring rain, with my shovel and opened up the ditch, so the water could flow as it has for 50+ years. Do towns protect natural storm ditches, especially when they serve as a relief when storm drains cannot handle the volume, thus getting the water off the street and preventing the roads from flooding? My neighbor and I could fill in this natural ditch that runs between our property, but at what cost, flooding out our street . . . no way. Is this a clear case of she can do what she wants it's her property (even though only half of the ditch "technically" belongs to her, or would the town council back us?

    Thanks for taking the time to read. My neighbor and I are trying to find out as must as possible before we approach the council. I can find nothing in our state or town's legislation that covers this subject.

  2. #2
    Join Date
    Sep 2005
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    Behind a Desk
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    98,846

    Default Re: Can Absent Land Owner Dam Up a Natural Made Storm Ditch

    If the land is wet year-round, the diversion of water may raise issues under state or even federal law as potentially damaging a wetland without permission. It's also possible that there are local regulations that would govern the diversion of water from a floodplain, particularly if the water is ending up on public roads or in the storm drain system. You may also be able to claim easement rights, given how long the ditch has existed at that location.

    Your state follows "common enemy" doctrine for surface water, so you don't enjoy the same level of protection that you would in most other states. Under the common enemy rule, a landowner may treat surface water as a common enemy and dispose of it as he sees fit. Morris v. Townsend, 253 S.C. 628, 172 S.E. (2d) 819 (1970). The two exceptions to this rule are that a landowner may not use his land in a manner to create a nuisance, nor may he discharge water in concentrated form upon his neighbor's land. Irwin v. Michelin Tire Corp., 288 S.C. 221, 341 S.E. (2d) 783 (1986). It sounds like this falls under the second exception.

  3. #3
    Join Date
    Dec 2009
    Posts
    7

    Default Re: Can Absent Land Owner Dam Up a Natural Made Storm Ditch

    Mr. Knowitall,

    Thanks for your reply. Here's what we have been able to gather so far. According to the town, a property owner can not block the free flow of storm water, especially if a route (ditch) provides relief to a street within the town's limits and has been in place since 1971.

    I found the Irwin v. Michelin Tire Corp. case interesting. A landowner may not use his land in a manner to create a nuisance . Due to the damming of the water, my neighbor now has 2" of water standing under her house. In the past when we experienced that much rainwater at one time, only the area (about a foot) directly in front of the crawl space door got wet. Opening the crawl space door for a day would dry the wet area. I think 2" of standing water under your house could be considered a nuisance . . . no? Oh but it gets better. We took the hedge clippers to a over grown bush and found the metal pin than marks the property line, guess who owns the ditch, the whole ditch? Anybody want to buy a ditch . . . you got it, me!

    Here's our only problem now (because we want to do this the right way), the town supervisor, as well as the county engineer has to come out and say, "yep, she can't do that" (red tape). We're wondering what she will do next. I found out from my back neighbor today that the only time she cuts the grass is when she gets a letter from the city (she should know, she's calling in the complaint). We expect more mulch just to make the lot unattractive. But we might can get around that. Please read the following (this was taken from the county website):

    Make a Difference in Your Neighborhood
    Remember that grass and weeds exceeding 18 inches in height or so dense as to harbor snakes, rats, etc. create a menace to public health and our neighborhoods. Similarly, litter, bricks, scrap lumber, old appliances, abandoned vehicles, and dilapidated buildings all are considered nuisances according to the City's Nuisance Abatement Code.
    Please take responsibility for your property and maintain it with pride. A little extra effort can really make a difference for the entire neighborhood. If you have any questions about nuisances in your neighborhood, contact the Building Department.

    Would piles of mulch (not blocking the ditch) be considered a nuisances according to the City's Nuisance Abatement Code? We're concerned that the piles will attract more of our state's bird . . . mosquitos!

    I'll let you all know how this turns out. Thank you.

  4. #4
    Join Date
    Dec 2009
    Posts
    7

    Default Diversion of Water from a Floodplain

    This post is a continuation of my first post "Can Absent Land Owner Dam Up a Natural Made Storm Ditch". Mr. Knowitall was very helpful in pointing out legislation used by my state, as well as trial history. My neighbors and I want to use the proper channels to solve this problem once and for all and hopefully the land owner will stop her foolishness.

    As my title states, our 1950-1960 developed sub-division (most lots are 1-1/2 to 2 acres) has a storm water problem. Things are bad enough when storm water flows as it should, but when a small .25 acre lot changed hands, problems started to arise (literally). Between my property and my next door neighbor's property runs a natural storm ditch (or so we thought) that catches rain water when the street drains are unable to take in so much water at one time. No one dug this ditch, it was formed over 50+ years by rain water. The new owner has come in and strategically placed a large pile of mulch in the ditch which results in the flood of my and my neighbors lots. We received 4" of rain this past Wednesday in a 10 to 12 hour period. My neighbor and I still have water standing in our yards. Since I purchased my home, this has happened a couple of times. My neighbor and I understand the situation and have never said anything. Short of building a retaining wall to prevent the storm water from running off the road and into our yards there's nothing we can do.

    Thanks for sitting through the recap. I learned something today that might help our cause. If you're willing to sit still long enough and listen to your elders, you might just learn something. Our homes are built on a river basin, as is the whole neighborhood (our's homes were built in the low lying area). Unfortunately, my neighbors home, my home, the .25 acre dammed up lot, and the three homes behind the lot were built along a stream that leads directly into the 200 mile long Saluda River*. The Saluda is a principal tributary of the Congaree River (located in northern and western South Carolina). The Congaree River, it is part of the watershed of the Santee River, which flows directly to the Atlantic Ocean.

    *That "ditch" that runs between our homes was once part of a creek. With the addition of storm drains, drought conditions that plague the South, and and the building of homes many years ago, has left behind a ditch. None the less, even with "modern" improvements in place, when Mother Nature pulls a nasty that we can't control, in this case, a natural watercourse quickly kicks in and does things the old fashion way. Any water that prefers to travel the old scenic route via the "ditch" meets up with the Saluda River exactly 1.2 miles behind my home.

    To quote Mr. Knowit all:
    If the land is wet year-round, the diversion of water may raise issues under state or even federal law as potentially damaging a wetland without permission. It's also possible that there are local regulations that would govern the diversion of water from a floodplain, particularly if the water is ending up on public roads or in the storm drain system. You may also be able to claim easement rights, given how long the ditch has existed at that location.

    So with the new knowledge acquired do we have a stronger leg to stand on if need be. While the land in question is not wet year-around, the fact still stands that if the one storm drain, located across the street from our homes is unable to take in so much water at one time, water will continue to find and use the down hill ditch/creek in it's effort to flow . . . straight into the Saluda River.

    Sounds good, right? Problems could be faced because our area IS NOT considered a flood zone by insurance companies.

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