Legal Definitions - flowage

Flowage refers to the legal principle that governs the natural movement of surface water from an uphill property to a downhill property. In this context, the higher property is known as the dominant estate, and the lower property is called the servient estate.

This principle establishes that the owner of the dominant estate has a legal right, often considered an easement or privilege, for naturally flowing water to continue onto the servient estate. Conversely, the owner of the servient estate has a legal obligation, or servitude, to accept this natural flow of water. This concept primarily applies to water that moves naturally due to gravity, such as rainwater runoff, rather than water that has been artificially diverted or channeled by human intervention.

• Residential Property Drainage: Imagine two neighboring homes, where Mr. Chen's backyard is situated on a slight incline above Ms. Davies's backyard. During a heavy rainstorm, water naturally runs off Mr. Chen's lawn and onto Ms. Davies's property, following the natural slope of the land.

  How it illustrates flowage: Mr. Chen's property is the dominant estate, benefiting from the natural drainage. Ms. Davies's property is the servient estate, legally obligated to accept this natural flow. Ms. Davies generally cannot build a large, impenetrable wall along the property line that would completely block this natural runoff and cause water to back up and flood Mr. Chen's yard, as this would interfere with Mr. Chen's established right of flowage.

• Agricultural Land Runoff: Consider a large farm where Farmer Miller's crop fields are located on higher ground, naturally sloping down towards Farmer Jones's pastureland. After a significant rainfall, excess water from Farmer Miller's fields naturally drains across the property boundary and into Farmer Jones's pasture.

  How it illustrates flowage: Farmer Miller's fields represent the dominant estate, having the right for natural water flow. Farmer Jones's pasture is the servient estate, which must accept this natural drainage. Farmer Jones cannot construct a large earthen berm along the property line that would entirely dam up the natural water flow and cause Farmer Miller's fields to become waterlogged, as this would violate the principle of flowage.

• Commercial Development and Adjacent Land: A developer plans to construct a new retail shopping center on a parcel of land that is naturally elevated above an adjacent, undeveloped forested area owned by a conservation trust. The natural topography indicates that rainwater from the developed site will drain into the forested area.

  How it illustrates flowage: The developer's property, being the higher ground, is the dominant estate, and the conservation trust's forested area is the servient estate. The developer has a right for the natural flow of water to continue onto the lower property. However, this right is typically limited to the *natural* flow; the developer cannot significantly alter the landscape or create new, concentrated channels that would drastically increase or redirect the water flow in a way that causes undue erosion or damage to the servient estate. The principle of flowage ensures the lower property must accept the *natural* drainage patterns.