Whorton v. Malone
In Whorton v. Malone, 209 W.Va. 384, 549 S.E.2d 57 (2001), a landowner claimed immunity from nuisance liability for stormwater that was discharged from his property onto adjoining property - because the water allegedly "originated" on another piece of property.
The Court stated in Whorton that "it is an inescapable fact of nature that, surface water 'originates' elsewhere. It either falls from the sky, comes up from a spring, or flows from a higher grade to a lower one.
But whether it comes from a cloud, spring, or an upstream neighbor, once that water arrives upon a given property, that property owner 'is entitled to take only such steps as are reasonable,' in diverting it. Id., 209 W.Va. at 389, 549 S.E.2d at 62.
Syllabus Points 6 and 7 of Whorton v. Malone state:
6. When a plaintiff alleges that a defendant has caused or allowed surface water to damage the plaintiff, the mere fact that the water does not originate on the land of the defendant, does not, in and of itself, make the defendant's conduct "reasonable" under the test established in Morris Assocs., Inc. v. Priddy, 181 W.Va. 588, 383 S.E.2d 770 (1989).
7. In the absence of a valid waiver or other contractual arrangement, altering the natural flow or drainage of surface water upon one's land such that the water causes damage to another party is not "reasonable" merely because the person altering the flow of water sought to protect his or her own property and did not intend to harm any other party.