Morris Associates, Inc. v. Priddy
In Morris Associates, Inc. v. Priddy, 181 W.Va. 588, 383 S.E.2d 770 (1989), the plaintiffs filed a complaint against the defendant alleging that the flooding that damaged their property was caused by the fill the defendant had placed on his property.
The Court discussed at length the development of our law with regard to a landowner's liability for altering the surface of his or her land to change the course or amount of surface water that flows off the land onto an adjoining landowner's property.
After rejecting the civil rule which, the Court explained, rests on the maxim, "So use your own property or right that you do not injure another," Morris, 181 W.Va. at 590, 383 S.E.2d at 772, and the common law rule, which allows "each owner to fight surface water as he chooses," id, citing Jordan v. City of Benwood, 42 W.Va. 312, 315, 26 S.E. 266, 267 (1896), the Court settled on a new rule, set forth in Syllabus Point 2, which provides, in part:
"Generally, under the rule of reasonable use, the landowner, in dealing with surface water, 8 is entitled to take only such steps as are reasonable, in light of all the circumstances of relative advantage to the actor and disadvantage to the adjoining landowners, as well as social utility. Ordinarily, the determination of such reasonableness is regarded as involving factual issues to be determined by the trier of fact."
In adopting this rule from the Connecticut Supreme Court case of Page Motor Co., Inc. v. Baker, 182 Conn. 484, 438 A.2d 739 (1980), the Court reasoned:
"An increasing number of courts have come to the conclusion that both the civil and the common law rules, even as modified, are too inflexible to meet the demands of an urban society. The development of land for commercial, industrial, and housing complexes requires alteration of the property. If this is to occur, an owner must be able to take reasonable steps to develop property without being subjected to suit. In the development of property that is not entirely level, there is generally a need for artificial drainage to handle surface waters and, by reasonably using such devices, liability should not necessarily result." (Morris, 181 W.Va. at 591, 383 S.E.2d at 773.)