Legal Question in Real Estate Law in California
Re: Water Drainage
Over five years ago when previous owners our property and our uphill neighbor's property, the uphill neighbor diverted all of his surface water into a pipe that flowed into our property which has caused substantial damage to our property. After spending years trying to identify the source of the problem, which we assumed was a natural stream or some other caused, we have just discovered the cause of our problem, which our neighbor has acknowledged. Our neighbor does not have an easement to discharge water onto our property but claims our prior owner agreed to the discharge onto our property. We have just learned about the problem. Would our uphill neighbor be able claim that he acquired a right to divert the natural flow of the surface water and discharge it onto our property in a manner that causes property damage consisting of cracks in retaining walls, steps and our outside patio?
1 Answer from Attorneys
Under California law a person can obtain title to, or an easement to use, another's real property if he occupies or uses the property in a manner that is open, notorious, adverse, hostile and continuous for at least five years. According to the facts you have stated, the "hostile" element is missing because the neighbor had the permission of the previous owner of your property. The "open and notorious" elements may also be missing because it was not obvious that the runoff was coming from the neighbor's diversion pipe.
You should hire an attorney to send a cease and desist letter to the uphill neighbor.
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