We have all heard the old adage, “It’s either feast or famine.” Rain in the Hill Country tends to be the same way. In the past year we went from some of the worst droughts since the 1950’s to dealing with very serious and deadly flooding around Memorial Day. Both scenarios can cause problems, with droughts hurting the production of crops, livestock growth and natural flora, and floods creating their own brand of chaos, from flooding water crossings (please don’t drive through them) to washing out roads, fences, and yards. Texas has long dealt with these two extremes, with drought being far more common. Since droughts make water such a precious commodity, many a disagreement has been started over who owns the water, and more recently who is responsible for the runoff.

Everyone in this area had to cope with floodwater runoff recently, whether it was destroying a fence or washing away grass. As soon as the ground was dry a lot of people went to work, trying to more effectively move the water off of their property, so as to prevent this damage the next time it floods. And it will flood again, always has, always will. Shovels, bobcats and backhoes all went to digging, shaping and moving dirt. This is fine out in the rural areas, but in towns and subdivisions this raises questions. What can I do with runoff? Can I divert it elsewhere? Can my neighbor dump their runoff on to my property?

There are numerous theories of liability, definitions, and regulations that define water law across the United States, and even several categories of water. Texas has recognized three different categories of water, namely; groundwater, surface water, and diffused surface water. Storm water, flood water, drainage and surface runoff are often called “diffused surface water,” which is generally defined as water that has not entered a watercourse. A watercourse has definite banks, such as a river or lake, but there are situations when drainage or irrigation channels meet the requirements.  In Texas, diffused surface water is owned by the landowner on whose property the water lies, until it enters a watercourse, at which point it becomes owned by the State, in trust for the people of Texas. Prior to the runoff reaching a watercourse, it is free to be captured, or diverted and stored, by the landowner for the landowner’s personal use, and in many rural areas this is exactly what takes place with some stock tanks. It is the same situation with rainwater collection systems. As the rainwater is free to be captured, many homes are designed and built to collect this rainwater for that home’s use, with some homes even using only rainwater for the family’s needs. Some problems tend to arise in urban areas, where construction, landscaping, roadways, sidewalks, etc. all work against moving the rainwater, or runoff, to a watercourse. The water has to go somewhere, and people often disagree on where it should go, and how much of it should go where.

Texas has recognized the natural flow, or “civil law” rule regarding diffused surface water since 1915. The civil law rule states the owner of the lower estate must accept surface water from the upper estate insofar as its natural flow and the owner of the upper estate cannot require the owner of the lower estate to accept a greater runoff. At the same time, the owner of the lower estate cannot block the surface water from the upper estate. This means that neighbors cannot increase or decrease the amount or flow of runoff beyond what it would be in the land’s natural state.

Simply put, each neighboring property has to take the same amount of runoff as it did when the land was in its natural state. It also means that the neighboring property cannot increase the runoff, but the lower property has to take, by law, as much runoff as it did before the natural flow was altered. In the event the natural flow is increased, due to construction, landscaping, or the like, the upper estate property owner may not increase the flow volume.

We have all chosen the Hill Country as the place to make our home, and the secret is out! The Hill Country is growing very rapidly, with new construction, subdivisions, stores and schools appearing almost weekly. Some people appreciate growth, and others are more skeptical. However, we are all in this together, and we can work together to make it a better place. Abraham Lincoln once said “Discourage litigation. Persuade your neighbors to compromise whenever you can. Point out to them how the nominal winner is often the real loser — in fees, and expenses, and waste of time.”

This article was prepared by B.R. “Randy” Allen and Richard Busbee.

B.R. “Randy” Allen is the managing partner of Allen & Associates, LLP of Boerne, Texas, a law firm specializing in Real Estate, Oil, Gas and Mineral Law, Litigation, and Property Tax Management as well as the owner of Alamo Title Boerne.  Randy is a Fellow in the State Bar Foundation, a Certified Professional Landman, and is licensed to practice law in Texas, Kentucky, Ohio, Utah, North Dakota, Colorado and Pennsylvania.  He received his bachelor’s degree from Virginia Commonwealth University, and his juris doctorate and M.B.A. from St. Mary’s University.

Richard Busbee is an Associate at Allen & Associates, LLP in Boerne, Texas, where he practices Oil and Gas Law.  He received his bachelor’s degree from The University of Texas at San Antonio and his juris doctorate from St. Mary’s University School of Law.  He is licensed to practice law in the state of Texas.