September 24, 2009
Dear Sir:
Your question is whether under Tennessee=s natural flow rule, a landowner is liable for
flooding caused by vegetative growth in a watercourse that crosses his land?
That is a surprisingly difficult question, but the answer appears to be no.
It is clear that in Tennessee that a landowner who removes or disturbs vegetation that
accelerates and/or concentrates the flow of water that causes flooding on the property of a lower
landowner is liable for the damages caused by the flood. But as you undoubtedly already know
(or you would not have asked the above question) the Tennessee cases citing the natural flow rule
repeatedly declare that the landowner who creates an “artificial impediment” to the natural flow
is liable for flooding that arises therefrom. The Tennessee cases involving the impediment of the
natural flow deal with dams, drainage tiles, railroad trestles, and other manmade impediments to
the natural flow of water. In one case, Chicago, M & G.R. Co.v. Wheeler, 1 Tenn. App. 100
(1925), the court did mention trees and other vegetation growing in the ditch in question this
way:
Defendant=s undertook and did show that at one place in the ditch
north of the trestle, and on or near the land cultivated by the
plaintiff, one or two trees were growing in the ditch and there were
certain vines and vegetation growing in same. But as we
understand the record, the main break in the side of the ditch and
through which the water came that caused the material damage to
the plaintiff=s crop was between the trees and the trestle, so that
the trees would tend to minimize rather than aggravate the
overflow. In any event, it was a question for the jury as to whether
the
overflow was caused by the trestle or by their obstructions in the
ditch. There is in the record material evidence that it was caused
by the trestle, and the jury having accepted that view of the matter,
we are bound by its findings. [At 1925 WL 1856]
We are not given a clue what would have happened in that case if the trees and other
vegetation in the ditch had been the cause of the flooding, rather than the trestle, except that the
court stated the familiar “artificial impairment” rule:
September 24, 2009
Page 2
All lands, therefore, are of necessity burdened with the servitude of
receiving and discharging all waters which flow down to them from
lands on higher levels, and if the owner or occupier of the lower
lands interposes artificial impediments in the way of the natural
flow of the water across or through his lands, and by so doing
causes the higher lands to be flooded, he is responsible for the
infringing on the natural right of the possessor of such higher land
to the natural outfall and drainage of the soil, unless he has gained a
right to pen back water by contract, grant, or prescription. [At 1925
WL 1856]
I am enclosing Law of Water Rights and Resources, ' 3.16, entitled, Waters subject to
riparian rightsBFlood watersBcommon law rules. In the third paragraph of that treatment, I have
underlined what appears to be the rule about vegetation (and even a beaver dam) in other
jurisdictions that follow the common law rule, although the North Dakota case cited therein,
which I have also attached, involves a North Dakota Statute ' 61-01-07, which provided that:
If a person illegally obstructs any ditch, drain or watercourse, or
diverts the water therein from its natural or artificial course, the
person is liable to the party suffering injury from the obstruction or
diversion for the full amount of the damage done, and, in addition,
is guilty of a class B misdemeanor.
The court held that, “We conclude that N.D.C.C. ' 61-01-07 did not create a duty upon the
Nelsons and Hendrickson to maintain the downstream watercourse by cleaning out, mowing, or
burning natural growing vegetation....” [See Bucholtz v. Barnes County Water Board, 775
N.W.2d 472 (N.D. 2008).] Such growth would not seem to be an “artificial impediment” under
the common law natural flow rule either.
If you have found anything different, please let me know.
Sincerely,
Sidney D. Hemsley
Senior Law Consultant
SDH/