Tort Law

Brien Roche

This page within Virginia Tort Case Law is a compilation of cases reported by the Virginia Supreme Court and summarized by Brien Roche dealing with the topic of Water.

See drowning and other articles on this site dealing with that subject matter .

Water-Statutes

Va. Code § 62.1-104 as to impoundment of surface waters.

Water-Cases

2015 Collett v. Cordovana, 290 Va. 139, 772 S.E.2d 584.
Plaintiff landowner alleged that defendant neighbor was committing trespass, nuisance, negligence per se, and ordinary negligence for directing large quantities of water onto plaintiff’s property. Surface water is treated as a common enemy. Plaintiff failed to set forth proper claim under any of those causes of action.

2012 Kurpiel v. Hicks, 284 Va. 347, 731 S.E.2d 921.
Trial court erred in sustaining demurrer for common law trespass alleging that defendants did not develop their land in a reasonable manner and, as a result, storm water was directed onto the plaintiff’s property amounting to a trespass. Complaint alleged sufficient facts to state the claim based upon a violation of the modified common law rule applicable to surface water.

1999 Phillips v. Southeast 4-H Educ. Ctr., Inc., 257 Va. 209, 510 S.E.2d 458.
Decedent in this case who is experienced swimmer who had been swimming under water and actually sitting on bottom of pool. Lifeguard noticed after period of time, while decedent had been sitting on bottom of pool, that air bubbles ceased coming up. Lifeguard dove in and removed decedent, thereafter, administered CPR without success. Owner of swimming facility, depending on circumstances, may have duty to station qualified lifeguards to supervise patrons and to rescue those in peril. In such cases, owner is liable for negligence of lifeguards in performance of these duties. Lifeguard’s duty is twofold: observe swimmers for signs of distress, attempt rescue of those in distress using care that ordinary cautious lifeguard would exercise under similar circumstances. Plaintiff’s expert testified that lifeguards should exercise 10/20 second rule which requires lifeguard to assess every situation for ten seconds before determining whether action is necessary and reassessing that situation within 20 seconds. In this case, lifeguard testified that he waited a minute before effecting the rescue therefore, violated the rule. Issue of negligence in this case was a jury issue although there was no evidence as to that negligence being proximate cause of death. Plaintiff’s expert testified if decedent had pulse when he was removed from water and artificial respiration had been timely undertaken, then there was a good chance he was going to recover. It is purely speculative as to when pulse stopped. Evidence of “good chance” of recovery is insufficient to create jury issue as to causation. Motion to strike was properly granted.

1990 Swanenburg v. Boland, 240 Va. 408, 397 S.E.2d 859.
Trial court erred in making factual finding that mean low-water mark in riparian rights case was at certain point as there was no probative evidence supporting that finding. It also erred in failing to determine and mark litigant’s riparian rights when issue was raised in pleadings.

1985 Lawrence v. Snyder, 229 Va. 139, 326 S.E.2d 690.<
Plaintiff must show how and why accident occurred. Evidence that defendants knew pipes would freeze unless proper precautions were taken, and evidence they did freeze causing damage and that condition not discovered during two day period is insufficient to show why accident happened.

984 Mullins v. Greer, 226 Va. 587, 311 S.E.2d 110.
Surface water is common enemy. Landowner under modified common law rule may control surface water in any reasonable way if he does so in good faith and not wantonly, unnecessarily or carelessly. Exception to common law rule forbids landowner from injuring another by diverting flow of surface water from natural channel. Evidence in this case supported trial court’s decision that defendant unreasonably rerouted water from established stream.

1983 Town of West Point v. Evans, 224 Va. 625, 299 S.E.2d 349.
In this sewage backup case plaintiff failed to prove negligence on part of town.

1979 “Automatic” Sprinkler Corp. v. Coley & Petersen, Inc., 219 Va. 781, 250 S.E.2d 765.
Plaintiffs who were responsible for care and protection of their construction work until final inspection and acceptance, had standing to sue for damage to such work before that time. Damage caused by bursting pipes.

1975 McCauley v. Phillips, 216 Va. 450, 219 S.E.2d 854.
Diversion of surface water case. Surface water may be fended off provided it is done reasonably, in good faith and not unnecessarily or carelessly.

1975 Mobley v. Saponi Corp., 215 Va. 643, 212 S.E.2d 287.
Continuing trespass by raising level of lake to inundate portion of landowner’s property may be enjoined.

1974 Seventeen, Inc. v. Pilot Life Ins. Co., 215 Va. 74, 205 S.E.2d 648.
Surface water is common enemy that may be fended off by each landowner. But landowner may not collect surface water into artificial channel and pour it upon land of another to his injury.

1971 State Hwy. Comm’r v. Richmond, F. & P.R.R., 211 Va. 612, 179 S.E.2d 640.
Riparian owner cannot so obstruct natural watercourse as to cause surface water flowing therein to flood lands of upper owners, whether flooding results from usual periods of rainfall or from those unusually heavy periods that should be anticipated as they have occasionally occurred in past.

1970 Robertson v. Alexandria, 210 Va. 418, 171 S.E.2d 692.
Suit against city for flood damage caused by stream. Flooding due to inadequate culverts and other causes. It was responsibility of city and adjoining county to maintain culverts. No actionable negligence on part of defendant alone.

1966 Carolina, C. & O.R.R. v. Mullins, 207 Va. 207, 148 S.E.2d 752.
Plaintiff’s personal and real property allegedly damaged by flooding caused when debris jammed against defendant’s trestle bridge, created dam and flooded plaintiff’s house and land. Plaintiff failed to prove that trestle was negligently constructed as alleged in motion for judgment only allegation regarding liability asserted against defendant.

1958 Coal Corp. v. Salyer, 200 Va. 18, 104 S.E.2d 50.
Dynamite blast alleged to have cut off underground water. Plaintiff must show spring fed by other than percolating water and if fed by subterranean stream that defendant should have known this.

1956 Lake Barcroft Estates, Inc. v. McCaw, 198 Va. 242, 93 S.E.2d 124.
Flood gates opened and water damaged plaintiff’s property. Verdict for plaintiff.

1955 Hodges Manor Corp. v. Mayflower Park Corp., 197 Va. 344, 89 S.E.2d 59.
Rule that surface water is common enemy which each landowner may fight off as best he may is subject to exception that one owner cannot collect it into artificial channel or volume and pour it on land of another. Defendants greatly increased flow of water onto plaintiff’s land by installing larger drain pipes under road. Evidence sufficient to support verdict for plaintiff.

1954 Heldt v. Tunnel Dist., 196 Va. 477, 84 S.E.2d 511.
Tunnel district allowed water to stand on street, which weakened plaintiff’s foundation. Inverse condemnation not dependent on proof of negligence.

1952 Howlett v. City of South Norfolk, 193 Va. 564, 69 S.E.2d 346.
Surface water is defined as that which is diffused over surface of ground, derived from failing rains and melting snow, and continues to be such until it reaches some well defined channel. Owner of land cannot collect surface water into artificial channel or volume and pour it upon land of another to his injury.

1951 Portsmouth v. Culpepper, 192 Va. 362, 64 S.E.2d 799.
Plaintiff sought damages for injury to crops when city caused his land to be flooded. Verdict for plaintiff.

1949 Mason v. Lamb, 189 Va. 348, 53 S.E.2d 7.
Damage caused by surface water. Common enemy rule adopted as to surface water. Owner of lot may alter surface thereof essential to its enjoyment regardless of effect on surface water, provided he is not negligent.

1946 Panther Coal Co. v. Looney, 185 Va. 758, 40 S.E.2d 298.<
Rights of riparian landowners discussed.<

1946 Southern Ry. v. Jefferson, 185 Va. 384, 38 S.E.2d 334.
No person has right to construct culvert over natural watercourse in such manner as to obstruct flow and throw water back onto another’s property. Culvert must be sufficient so as to accommodate that flow of water which may be reasonably anticipated.

For more information about water and riparian rights see the pages on Wikipedia.