A Probably Unnecessary Suit

Sometimes it isn’t always the best idea to sue. In fact, often, if you can settle a dispute without suing, you’re more likely to have the resolution carried out. The person on the other side will have more of an investment in the result. Sometimes you’re going to be dealing with the other person for a long time regardless of the result, and you may find it to your advantage not to make them angry. In any event, sometimes lawsuits can be difficult to handicap, so the risk of a loss should be taken into account. A recent case between two neighbors illustrates the risk of suing when the sequence of events is in dispute.

The neighbors owned two properties in Clackamas County, one upslope of the other. The upslope property had, for a long time, discharged surface water onto the downslope property. In 2007, the upslope owners replaced their septic system, and, at the instruction of the county, installed a groundwater interceptor system. This consisted of a gravel-filled trench with a perforated pipe at the bottom, which collected groundwater and discharged it through a solid pipe to the surface, about 36 feet from the property line.

After the interceptor was installed, the downslope neighbors noticed that soil along the property line had become significantly more muddy than previously, and that their own drainage ditch was overflowing. They deepened the ditch and installed a French drain.

In 2010, the downslope neighbors notified the upslope neighbors of the drainage problem, claiming the interceptor was the cause, and demanding that drywells be installed. The upstream neighbors consulted the county engineering department. Two county engineers investigated and reported that they did not believe the interceptor was the cause, as the discharge appeared to percolate back into the ground before reaching the property line. They also stated that because of subsurface rock, drywells were not likely to effectively control the drainage.

The downslope owners then sued for trespass (from the water running onto their property) and nuisance (on the theory that they were less able to use the area near the property line), asking for an injunction against further discharges and some small damages.

In Oregon, trespass requires proof that the entry onto the plaintiff’s property by a defendant, or caused by a defendant, must be either with knowledge that a trespass would happen, negligent, or caused by an abnormally dangerous activity (such as blasting). Similarly, to prove a nuisance, the interference with the plaintiff’s use of property has to be with knowledge, negligent, or the result of abnormally dangerous activity. The trial judge ruled that the upslope owners did not know the discharge would happen. He also ruled that their actions both in planning the installation of the interceptor and investigating when the problem was called to their attention were reasonable under the circumstances, so they could not be found negligent. They were allowed to rely on the engineers’ report. (Nobody claimed that the installation was abnormally dangerous,)

The Court of Appeals allowed the trial judge’s ruling to stand, primarily because the question on appeal was whether there was evidence presented to the trial judge to support his ruling. Reliance on the engineers’ report was, under the circumstances, an acceptable course of action by the upstream owners

This suit was probably avoidable, and probably cost the downstream owners significant attorney fees and expert fees. The upslope owners’ legal and expert fees were probably paid by their homeowners’ insurance, but that still means that a lot of money was spent that could have been avoided.

In a case like this one, a more fruitful approach probably would have been to discuss whether the cause of the problem, if it wasn’t the interceptor, could be identified so that the responsible people could make the necessary repairs. A mediator might have been useful in helping them come to that point.

If you believe that conditions on your property are being affected by conditions on someone else’s property, or if someone claims that conditions on your property are affecting their property, the first step will often be to consult a contractor, engineer, or other expert to get an opinion of the probable cause. Once that is identified, then it may be worth your while to talk to the neighbor to try to resolve the problem. If that doesn’t work, you may want to talk to a lawyer. Often, these situations are best handled through negotiation or mediation. Suing for a resolution is often unpredictable, and may result I more expense than any benefit from a result. Fortunately, often, lawyers can be of service in either negotiating or mediating, should you need help.

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