What to do if there is a steep hill running down into the back of my yard and my property is being flooded by a broken dry well on my neighbor’s property?

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What to do if there is a steep hill running down into the back of my yard and my property is being flooded by a broken dry well on my neighbor’s property?

When the house above and behind me was built (before I owned my home), the builder apparently was concerned about creating a downstream drainage problem because he put in a dry well at the back of my neighbor’s property. For over 25 years, I had no problems. But now it seemd like the dry well has broken or is full of silt because last spring I started getting lots more water into my yard, even when it hadn’t rained in days. Sometimes it’s almost like a spring coming out of the ground. And it flows out of the ground, onto my hill, directly below where the dry well is located. The neighbor has been unwilling to even admit that it has anything to do with the dry well. Do I

Asked on January 15, 2013 under Real Estate Law, New York

Answers:

S.L,. Member, California Bar / FreeAdvice Contributing Attorney

Answered 8 years ago | Contributor

You can sue your neighbor for nuisance.  Nuisance is an unreasonable interference with the use and enjoyment of your property.

Damages (monetary compensation you are seeking in your lawsuit) would be an inadequate remedy because of multiplicity of lawsuits as the flooding of your property is an ongoing problem.  Damages are also an inadequate remedy because land is unique.

When damages are an inadequate remedy as in your case, you can proceed with an equitable remedy which would be an injunction to stop the flooding of your property by your neighbor.  There are three phases to the injunction.  Initially, the court may issue a temporary restraining order to stop the flooding until there is a preliminary hearing at which time the court may issue a preliminary injunction.  The preliminary injunction would be in effect until trial at which time the court may issue a permanent injunction.

In order to determine whether or not to grant an injunction, the court balances the benefits and burdens of the parties.  The benefit to you of not having your property flooded versus the burden to your neighbor of the cost of stopping the flooding by repairing the dry well or other measures.  The benefit to you of not having your property flooded would outweigh the burden to your neighbor of the cost of repairing the dry well to stop the flooding, which would be your argument for the court to grant an injunction.


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