By: Andrew Gardner
Water diversion, and property damage arising from it, is a tale as old as time. Since there has been rain and weather, humans have been just trying to stay dry. The State of Texas, and the residents within, are no strangers to this common real property issue. Codified by the 65th Texas legislature, Section 11.086 of the Texas Water Code creates grounds for recovery for the diversion of “surface water.”
More specifically, subsection (a) of Section 11.086 of the Texas Water Code provides:
“No person may divert or impound the natural flow of surface waters in this state, or permit a diversion of impounding by him to continue, in a manner that damages the property of another by the overflow of the water diverted or impounded.”
As with many a statute drafted, the Legislature left a key term (in this case “surface water”) open for interpretation.
While Justice Potter Stewart might have said, “…I know it when I see it…” when setting the standard for what is “obscene,” until the turn of this century, the definition of what constitutes “surface water” was left to varying interpretations amongst Texas courts.
In 2003, the First Court of Appeals in Houston interpreted “surface water” to mean water “which is diffused over the ground from falling rains or melting snow, and [it] continues to be such until it reaches some bed or channel in which water is accustomed to flow.” The takeaway from the Texas Woman’s University decision was that diffuse surface water is not the same as flood water and/or water entering or following a defined course (i.e., waters that have overflowed a natural water course but remain a continuous part of the original water course.) In fact, in Dietrich v. Goodman, the Fourteenth Court of Appeals proclaimed that “…a landowner might divert the entire Brazos River across his neighbor’s property without subjecting him to liability [under Section 11.086].…”
This distinction came to a head in Michaelski v. Wright, in which the appellate court considered a trial court judgment rendered in favor of Defendants John & Peggy Wright and Grant & Rebecca Dietz. In the underlying trial court proceeding, the Michaelskis argued that, when the Wrights raised their property in 2009, nearly all the diffuse surface water that used to collect in the Michaelskis’ backyard and flow through the Wrights’ backyard (and into proper drainage) became impounded and, therefore, trapped in their own backyard. In contrast, the Wrights/Dietzes argued that nearly the entire neighborhood flooded on the date in question and that it was these floodwaters, and not impounded or diverted diffuse surface water, that resulted in the damages forming the basis of the Michaelskis’ claims.
Evidence presented at trial showed the presence of a man-made swale and/or communal ditch between the Michaelskis’ property and the Wrights/Dietzes’ properties. The appellate court concluded that any damage stemming from water overflowing in this area was not recoverable under the Texas Water Code. With that ruling, the Michaelskis’ only basis of recovery would be if the record established, as a matter of law, that the change in the elevation of the Michaelskis’ neighbors impounded water that had previously flowed, and that the water was not part of the floodwaters.
Witnesses for the defense testified that water had been seen “bubbling up out of the catch basin,” that there was talk about “how the city drain couldn’t handle all the water,” and that it was “just a really bad storm.” The trial court found, and the appellate court affirmed, that this was a question of fact for a jury, and not a question of law for the court.
In concluding its analysis, the court noted that the distinction between when water ceases to being diffuse surface water is a critical inquiry for the availability of recovery under the Texas Water Code, and that, under its interpretation, “when rainfall is under control, either by ditches, tanks, ponds, or pipes, it is no longer consider [diffused] surface water.…” The court, also pulling from its prior holding in Texas Woman’s University v. The Methodist Hospital, noted that whether or not water has been “touched by human hands” is irrelevant to the analysis, and that whether diffuse surface water comes under the control of a defined waterway is the critical inquiry.
The lesson learned from Michaelski is clear: what constitutes actionable diffuse surface water is anything but clear. It remains to be seen how future appellate courts will rule in cases involving surface water, particularly in the (likely) situation that also involves rising floodwaters. Will the critical inquiry be whether a defined waterway controls the diffuse surface water? What will be the call when a claimant’s damages arise from both diffuse water and floodwaters? Or maybe the better question to ask is: “How would someone go about moving the entire Brazos River just to annoy their neighbor?” Only time will tell.
 Tex. Woman’s Univ. v. The Methodist Hosp., 221 S.W.3d 267, 277 (Tex. App. – Houston [1st. Dist.] 2006, no pet.) (quoting Dietrich v. Goodman, 123 S.W.3d 413, 417 (Tex. App.—Houston [14th Dist] 2003, no pet.).
 Michaelski v. Wright, 444 S.W.3d 83 (Tex. App.—Houston [1st Dist.], 2014, no pet.).