Agenda, Packets, Minutes
12/29/2003 1:34:58 PM
12/16/2003 4:41:09 PM
Board of Supervisors
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COMMONWEA/TH'E ATTORNEY <br />FOR <br /> <br /> CHESTERFIELD COUNTY <br /> <br />MARCUS A. CO~3BILL <br /> ATTORNEY AT LAW <br /> <br />CHESTERFIELD. VIRGINIA <br /> <br /> Two general rules prevail in the United States with <br />regard to surface water and the drainage of same. The two <br /> 'fP, mm <br />rules are _o _on Law Rule" and "Civil Law Rule". The Common <br />Law Rule is as follow~: <br /> <br /> "2urface water is regarded as a common enemy, and every <br />landed proprietor has the right, as a general proposition to <br />take any measures necesssry to the protection of him property <br />from it~ ravages. The proprietor of the lower tenement or estate <br />may at hi~ option lawfully obstruct or hinder the flow of such <br />water thereon, and in so doing may turn it back or away from his <br />own land~ and on to and over the land~ of other proprietors with- <br />out liability of such obstruction or diversion. The gist of the <br />rule i~ that one may do a.~ he please~ with his property regardle,~.~ <br />of the effect on surface water." 56 Am. Jut. 552, ~ec. 69 War <br /> <br /> Virginia follow~ the Common Law Rule subject to the <br />qualification herein recited. The rule a~ followed in Virginia <br />is .~tated in a situation ~imilar to the one before the Board at <br />thi,~ time and I quote pertinent passages from this ca~e, Third <br />Buckingham Community vs. ~uder~on, 178 Va. 478, 17 ~.E. 2d <br />at page ~+36: <br /> <br /> "Vfhile it is true that the so-called common-law doctrine <br />prevail~ in Virginia, it is nevertheles~ ~ubject to the important <br />qualification that the privilege~ conferred by it 'may not be <br />exercised wantonly, unnece~,~arily or carelessly; but i~ modified <br />by that golden maxim of the law that one must ~o use his own <br />property a~ not to injure the right~ of another. It mu~t be a <br />rea=onable use of tho land for its improvement or better 6njoyment, <br />and the right mu~t be exercised in good faith, and with no purpose <br />to abridge or interfere with the right~ of other~, and with ~uch <br />care with respect to the property that m~.y be affected by the use <br />or improvement as not to inflict any injury beyond what i~ necessary.'" <br /> <br /> The question now arises as to whether a land owner ~aay <br />divert water t~mt collects on his property on to the adjoining <br />land owner by increasing the natural flow by installation of a <br />drainage ditch. In the ca~e above recited the rule in Virginia is <br />a~ follow~: <br /> <br /> "It i~ the generally recognized rule both of the civil <br />and co~muon law that a landowner cannot collect ~urface water into <br />an artificial channel or volume, or precipitate it in greatly <br />increased or unnatural quantitie~ upon hi~ neighbor to the ~ub~- <br />tantial injury of the latter. Thi~ i~ true although no more weter <br />is collected than would have naturally flowed upon the property in <br />a different condition for it i~ evident that, while a given piece <br /> <br /> <br />
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