EMERGING CASELAW: Revisiting the Common Enemy Rule

Erich J. Schock      Feb. 6, 2015

Historically, the Common Enemy Rule provides that an upper landowner may discharge its stormwater on the land of a lower landowner, except where: (1) the water is diverted from its natural channel by artificial means, or (2) where the quantity or quality of the water discharged on the lower landowner is unreasonably or unnecessarily increased. Pennsylvania’s appeal courts revisited that principle in 2014.

In Bretz v. Central Bucks School District, 86 A.3d 306 (Pa. Commw. Ct. 2014), an en banc decision, the Court held that diversion of stormwater from its natural channel by artificial means does not involve a consideration of “reasonableness.”  Instead, to establish liability, one “need only show that a landowner collected and/or concentrated surface water from its natural channel through an artificial medium and that the water was discharged onto the [neighboring] property in an increased volume or force, however slight.” Further, and important for developers to recognize, governmental approvals do not provide per se protection that a party is not liable under the common enemy rule.

The property owner in Youst v. Keck’s Food Service, Inc., PICS Case No. 14-0957 (Pa. Super. June 11, 2014) argued it had an easement by necessity for stormwater discharge. The Court found no Pennsylvania case that recognized an easement by necessity for any purpose other than access.  Unfortunately, the Court ultimately did not need to determine the broader question of whether the doctrine of easement by necessity pertained to storm water, because the plaintiffs failed to prove necessity.  (Even if plaintiffs’ claim was recognizable, the Court believed the claim would fail because the flow of water they sought was for convenience and not necessity.)  A future case may need to reach this question of the broader application of the doctrine of easement by necessity.

Steven T. Boell contributed to this article. This blog post has been prepared and published for informational purposes only.  None of its content should be construed as or relied upon as legal advice.  Therefore, no one should act or refrain from acting based on its content.  The content is not a substitute for competent legal advice.  For legal advice or answers to specific questions, please contact one of our attorneys.  Information provided by our attorneys should only be considered legal advice after a formal attorney-client relationship has been established with our law firm and you and confirmed in writing by one of our attorneys.

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