June 3, 2003
Dear Mayor:
Yesterday I received a fax from the MTAS engineering consultant. The fax is itself a fax
from an engineering firm, which requests MTAS to write a letter to a property owner in your City
asking him to correct a drainage problem he has created with respect to an abutting property
owner.
The statute under which MTAS was created permits MTAS to provide advice only to
municipalities; it cannot provide legal advice to private parties, or represent municipalities in any
legal actions. For that reason, I can only give the City advice as to the drainage law that governs
the relationship between the property owners, and the property owners and the city.
It does not appear to me from engineering firm=s fax that the city has any legal liability,
for, and is not suffering any damage to its property from, the drainage problem that affects the
owners of Lots 118 and 119. The fax indicates the drainage problem is caused by the owner of
Lot 119. If that is so, that is a legal problem that must be resolved by those property owners.
Storm water drainage in Tennessee is governed by the natural flow rule. Under the
natural flow rule, the lower property owner is required to accept the water that would naturally
flow from the upper landowner; he is not liable for any damages that arise
s from that natural flow. [Slatten v. Mitchell, 124 S.W.2d 310 (1938); Dixon v. Nashville, 203
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 (Tenn. App. 1978); Yates v. Metropolitan Gov., Nashville & Davidson
County, 451 S.W.2d 437 (1969).]
In Miller, landowners in a subdivision argued that the city was liable for flooding
problems in the subdivision, principally on the grounds that the city issued the permit for the
subdivision. The Court rejected that argument, declaring that, AThe mere fact that a nuisance
exists and has occasioned an injury to a third person, does not render the corporation liable
therefore, provided the nuisance was not created or maintained by the corporation itself.@ [At
880.] That was true, said the Court, even though the city in that case even periodically cleaned
out the ditches in the subdivision. The point of Miller=s with respect to the property owners in
Oakland is that simply because a private landowner suffers damage from drainage that violates
the natural flow rule, the city is not liable for damage for which it was not the cause.
Likewise, the city has apparently suffered no damage to its property from the drainage
problem arising from the owners of Lots 118 and 119. For that reason, it is doubtful that the city
June 3, 2003
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even has standing to sue the owner of Lot 119 to correct the drainage problem he has allegedly
created.
Unfortunately, the only advice I can give the city in this case is to tell the owner of Lot
118 to seek legal counsel in an effort to compel the owner of Lot 119 to correct the drainage
problem.
Sincerely,
Sidney D. Hemsley
Senior Law Consultant
SDH/