November 10, 2010
Dear City Manager:
The city has the following question: Does the city have any liability for water running
down the driveway of a certain house in the city, which the owner claims is the result of the paving
of the street in front of the house that elevated the street to the level of the driveway, which until
the street was paved was about 1-1/2 inches above the level of the street?
In my opinion, based on my personal visit to the property and street in question, the answer
is no.
It appears doubtful that the city is even liable for any flow of water down the driveway. In
Tennessee, drainage law is governed by the natural flow rule. Under that rule water has a natural
easement; that is, it must be permitted to flow along its natural path, and a lower land owner must
accept the water that naturally flows onto the property from the upper landowner. [Dixon v.
Nashville, 301 S.W.2d 178 (1976); Miller v. City of Brentwood, 548 S.W.2d 878 (1977); Butts v.
City of South Fulton, 565 S.W.2d 879 (Ten. App. 1978); Tate v. Metropolitan Government
Nashville & Davidson County, 451 S.W.2d 437 (1969). The natural flow rule applies to
municipalities and other governments as well as private property owners.
It appears to me that much of the natural flow of the water from the general area above the
property in question in this case would be in the direction of and over the property. In fact, along
the front of the property above the driveway a paving lip has been built into the edge of the
pavement, which presumably intercepts water that would have naturally flowed onto the property
under the natural flow rule. The lip of the driveway was elevated about an 1-1/2 inches above the
street pavement before the street resurfacing married the street pavement to the height of the
driveway lip. As I understand it, such driveway lips are designed to accommodate an additional
layer of pavement when a street is resurfaced and passes a driveway. But it appears to me that the
loss of the 1-1/2 inch lip of the driveway by the street resurfacing would not produce any
“substantial change” in the flow of the water.
Dixon v. Nashville, above appears to govern the city’s question. There it was held that the
city was liable for violating the natural flow rule by grading and paving Eden Street, which
deflected three separate streams which had previously run down a hillside, and brought them
together and “brought it [the water] to a single point where it was concentrated into a metal drain
terminating in the alley....” behind Dixon’s property. However, the Court declared that:
It is suggested that the damage was caused by the prevention of
absorption due to the paving of Eden Street. While the city has a
November 10, 2010
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right to improve its property in any natural and ordinary way so long
as there is no substantial change in the flow of surface water by
paving its streets alone, we think the actual cause was the defection
and concentration of the water into the drain. The surface of Eden
Street, we think, is too small in comparison to the total drainage area
above the alley to be a material factor.. [At 181]
It was not the paving of Eden Street that caused the problem; it was the consolidation of the
three streams into one stream, which was directed through one pipe at the rear of Dixon’s property
that was the cause of the problem, and which violated the natural flow rule.
In addition, to be actionable any change in the natural flow of the water must result in
damage. As I understand the facts, the “marrying” of the driveway lip and the street, has resulted
in no flood damage to the property in question. Apparently, a water main or other pipe broke
above the property, the water flow from which resulted in some gravel and dirt washing in the
driveway but the break caused no flood damage to the property.
However, if the city wishes to accommodate the property owner in some manner, I find
nothing in the law that permits him to dictate how that is done. The owner of the property wants
the city to elevate the driveway rather than to lower the pavement in front of the driveway. I
noticed that there is a lip on the edge of the street that runs in front of the property, which lip is
interrupted at the driveway. While I am not an engineer, one untutored in that field can look at the
driveway and see that there is probably no reason that the city could not continue a version of that
lip or something similar to it across the driveway, even reducing its height to approximate the
height of the lip of the driveway before the resurfacing of the street. Likewise, it appears that the
street/driveway height differential could also be restored by “chipping” the pavement off the edge
of the street where it meets the driveway. There may be other ways to produce the same or similar
results. In all cases, it is within the discretion of the city to determine how the accommodation is
made.
If I can help you further in this or any other matter, please let me know.
Sincerely,
Sidney D. Hemsley
Senior Law Consultant
SDH/