Legal Memorandum: Common-enemy Rule in NY

Issue: Under New York law, may a landowner discharge water onto the property of another?

New York has adopted the common-law, or so-called "common-enemy," rule with regard to the discharge of surface waters onto another’s property.  That rule was succinctly stated in the leading case of Kossoff v. Rathgeb-Walsh, Inc., 3 N.Y.2d 583 (1958).  As between upper and lower property owners,

[b]oth have equal rights to improve their properties, come what may to the surface water, provided, of course, that the improvements are made in good faith to fit the property to some rational use to which it is adapted, and that the water is not drained into the other property by means of pipes or ditches.  Where, as here, it is diffused surface water, neither party is prevented from improving his parcel of land regardless of what becomes of the surface water.

3 N.Y.2d at 589-90.  Kossoff involved the liability of the defendant landowner for the discharge of surface waters onto the plaintiff’s neighboring lot following the defendant’s construction of a gas station on his slightly elevated lot.  In order to build the station, the lot was raised an additional foot where it joined plaintiff’s property and blacktopped, which increased and accelerated the flow of water onto the plaintiff’s property.  There being no issue as to the good faith of the defendant in improving his property, and since it was undisputed that no pipes, drains or ditches were installed by the defendant, the court affirmed dismissal of the complaint.

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