Rainwater Natural Flow Theory / Civil Law

[Rooty1]

Merely a guess but maybe either they simply used the wrong document or maybe they believe the association with the land takes it into a real property issue or its the best thing they could come up with to indicate relinquishing any held interest to another party.

They wouldn't use a bill of sale because from what you stated so far, there was no sale. Ultimately a letter stating they were relinquishing any claim to the bridge in favor of the county would fill the bill which in its most basic sense, what a quit claim deed actually is.

Thanks so much. I still have a problem believing that roads and bridge are not part and parcel of real property and that the County can create a "parcel for just a bridge."

Your previous statement that, "Unless this is a hovering bridge, it involves real property. Somebody owns that property." makes the most sense.

Your input is greatly appreciated. It is people like you that help people like me sleep at night.

 

[Rooty1]

Pre Answer Motion to Dismiss

This is an issue that was just addressed in a thread recently (albeit for a poster from California).

The general theory is that the liability of a property owner to damages caused by rainwater tends to arise when the natural course of the rainwater is altered by a property owner and this alteration harms another.

UPDATE

In 2009, my neighbor mailed me a letter stating rain water/melting snow running down my driveway has damaged the road.

Last month, he sued me for same claiming a multitude of damages.

I turned the suit over to my Homeowners Insurance Company who in turn gave it to their attorney.

The attorney confirmed all actions in this case are bared by several statutes of limitation.

I believe that the attorney should have filed a Pre Answer Motion to Dismiss based on the statutes of limitations.

But he did not. He filed an answer which only mentioned the statutes of limitations.

Can a Motion to Dismiss now be filed?

Thank you.

 

[Rooty1]

Pre Answer Motion to Dismiss

What is the name of your state (only U.S. law)? Idaho


In 2009, my neighbor mailed me a letter stating rain water/melting snow running down my driveway has damaged the road.

Last month, he sued me for same claiming a multitude of damages.

I turned the suit over to my Homeowners Insurance Company who in turn gave it to their attorney.

The attorney confirmed all actions in this case are bared by several statutes of limitation.

I believe that the attorney should have filed a Pre Answer Motion to Dismiss based on the statutes of limitations.

But he did not. He filed an answer which only mentioned the statutes of limitations.

Can a Motion to Dismiss now be filed?

Thank you.

 

[quincy]

What is the name of your state (only U.S. law)? Idaho


In 2009, my neighbor mailed me a letter stating rain water/melting snow running down my driveway has damaged the road.

Last month, he sued me for same claiming a multitude of damages.

I turned the suit over to my Homeowners Insurance Company who in turn gave it to their attorney.

The attorney confirmed all actions in this case are bared by several statutes of limitation.

I believe that the attorney should have filed a Pre Answer Motion to Dismiss based on the statutes of limitations.

But he did not. He filed an answer which only mentioned the statutes of limitations.

Can a Motion to Dismiss now be filed?

Thank you.

First, I am sure your insurance company's attorney knows what he is doing. He probably considered a motion to dismiss instead of answering the complaint but decided against it for any one of several different reasons. One good reason for not filing a motion to dismiss is that there is never a guarantee the motion will be granted.

In the complaint's answer, the attorney (apparently) listed as an affirmative defense the statute of limitations.

I suspect the attorney will move for summary judgment later.


(thank you for adding your question to this thread, Rooty1 )

 

[Rooty1]

What is the name of your state (only U.S. law)? Idaho


In 2009, my neighbor mailed me a letter stating rain water/melting snow running down my driveway has damaged the road.

Last month, he sued me for same claiming a multitude of damages.

I turned the suit over to my Homeowners Insurance Company who in turn gave it to their attorney.

The attorney confirmed all actions in this case are bared by several statutes of limitation.

I believe that the attorney should have filed a Pre Answer Motion to Dismiss based on the statutes of limitations.

But he did not. He filed an answer which only mentioned the statutes of limitations.

Can a Motion to Dismiss now be filed?

Thank you.

First, I am sure your insurance company's attorney knows what he is doing. He probably considered a motion to dismiss instead of answering the complaint but decided against it for any one of several different reasons. One good reason for not filing a motion to dismiss is that there is never a guarantee the motion will be granted.

In the complaint's answer, the attorney (apparently) listed as an affirmative defense the statute of limitations.

I suspect the attorney will move for summary judgment later.



Why wait to move of summary judgment? Now he is talking about inspecting the road during the spring thaw. The condition of my driveway and the road are moot because the claims are barred by the statutes of limitation.

Seems pretty black and white to me - lol.

If a motion to dismiss were not granted, where would that leave me?

 

[quincy]

Why wait to move of summary judgment? ...

... If a motion to dismiss were not granted, where would that leave me?

Why wait? The attorney might have known how this particular judge feels about motions to dismiss? Perhaps the attorney was not confident a motion to dismiss would be granted? Maybe the attorney knows the other party intends to dispute the action falls outside the statute of limitations?

One known is that filing a motion to dismiss serves to delay the action. The attorney might have weighed the costs versus the benefits of this delay and found the benefits wanting. In some cases, waiting to file can simply be attorney strategy. It sometimes can be to a defendant's advantage to wait until after discovery, after the plaintiff has laid out all facts, to move for summary judgment.

But I really don't know the reasons for the attorney doing what he did. I assume whatever his reasons were, however, he thought they were good ones.

 

[Rooty1]

Why wait? The attorney might have known how this particular judge feels about motions to dismiss? Perhaps the attorney was not confident a motion to dismiss would be granted? Maybe the attorney knows the other party intends to dispute the action falls outside the statute of limitations?

One known is that filing a motion to dismiss serves to delay the action. The attorney might have weighed the costs versus the benefits of this delay and found the benefits wanting. In some cases, waiting to file can simply be attorney strategy. It sometimes can be to a defendant's advantage to wait until after discovery, after the plaintiff has laid out all facts, to move for summary judgment.

But I really don't know the reasons for the attorney doing what he did. I assume whatever his reasons were, however, he thought they were good ones.

The only "good one" I can think of has to do with his wallet - ha! Thanks ever so much; only time will tell.

 

[quincy]

The only "good one" I can think of has to do with his wallet - ha! Thanks ever so much; only time will tell.

Hahaha.

I agree that the reasons for the attorney's decision could become apparent in time.

 

[justalayman]

The only "good one" I can think of has to do with his wallet - ha! Thanks ever so much; only time will tell.

Are you paying his fee though? One would think if the title insurance company felt he was padding his wallet by improperly extending the suit they would take actions to rectify the situation. They deal with issues such as this enough they are not dumb to what is proper. I agree with Quincy that the attorney is most likely proceeding as he is for a valid reason.

 

[Rooty1]

Are you paying his fee though? One would think if the title insurance company felt he was padding his wallet by improperly extending the suit they would take actions to rectify the situation. They deal with issues such as this enough they are not dumb to what is proper. I agree with Quincy that the attorney is most likely proceeding as he is for a valid reason.

He is being paid by two insurance companies under a former and present homeowners policy. I plan to speak with both adjusters tomorrow.

Thanks for your input.

 

[LdiJ]

I know that I am coming into this late, but I do not see how a statute of limitations would apply. If rain/melt water coming down his driveway are damaging the road, its an ongoing problem that is happening right now. Just because the neighbor has complained about it previously doesn't mean that it isn't still happening.

Now, if it happened in 2008 and the OP did whatever was necessary to correct the problem back then, then I could see a statute of limitations applying.

Obviously the attorney for the insurance company is seeing something I am not.

 

[Rooty1]

I know that I am coming into this late, but I do not see how a statute of limitations would apply. If rain/melt water coming down his driveway are damaging the road, its an ongoing problem that is happening right now. Just because the neighbor has complained about it previously doesn't mean that it isn't still happening.

Now, if it happened in 2008 and the OP did whatever was necessary to correct the problem back then, then I could see a statute of limitations applying.

Obviously the attorney for the insurance company is seeing something I am not.

As to the flow of water caused by rainfall, the melting of snow or natural drainage of the ground, when two tracks of land are adjacent, and the one is lower than the other, the owner of the upper land has an easement in the lower land to the extent of the water naturally flowing from the upper land to and upon the lower land and that any damage that may be occasioned to the lower land thereby is damnum absuque injuria.

That aside, the damage to the road is preexisting dating back years prior to my purchase of the property. I made extensive improvements in 2009 but water really does like to run downhill.

The plaintiffs claims are barred by the applicable statutes of limitation, including but not limited to, Idaho Code §§ 5-218. 5-219. and 5-224.

 

[justalayman]

I know that I am coming into this late, but I do not see how a statute of limitations would apply. If rain/melt water coming down his driveway are damaging the road, its an ongoing problem that is happening right now. Just because the neighbor has complained about it previously doesn't mean that it isn't still happening.

Now, if it happened in 2008 and the OP did whatever was necessary to correct the problem back then, then I could see a statute of limitations applying.

Obviously the attorney for the insurance company is seeing something I am not.

Think of something like a prescriptive easement. A an owner is required to object
To the issue in a timely manner lest they be barred by the statutes of limitations from objecting later, at least successfully objecting. The water flow is a similar matter where one either objects to the issue or accepts things as they are. At some point either a person objects or the flow becomes the new natural flow. A person is not required to alter the natural flow of water to prevent damage. In fact, in some situations it would actually be illegal to alter the natural flow of water. In addition, when one does alter the flow, they open up themselves to new objections if the new path affects anybody adversely. The clock starts running when damage is first realized at the latest but could start from the time of the alteration.

Along with that, it must be determined that op or his predecessor has done something to alter the natural flow which resulted in any claimed damage. Again, one is not required to alter the natural flow to prevent damage. It is if a person alters the natural flow they become Liable for the resulting damages.

I suspect there is a possibility the statute of limitations defense may not be a complete defense to all claims. While the attorney could seek to have some claims dismissed, it may preclude him/her from bringing in some facts that cannot be brought in otherwise. Of course that is a WAG but it's a possibility. There are surely others as well.

 

[quincy]

... I suspect there is a possibility the statute of limitations defense may not be a complete defense to all claims ...

I suspect this, as well - but it is only one of many possibilities.

I am trusting that the insurance company's attorney knows best how to proceed with the action.

 

[Rooty1]

Think of something like a prescriptive easement. A an owner is required to object
To the issue in a timely manner lest they be barred by the statutes of limitations from objecting later, at least successfully objecting. The water flow is a similar matter where one either objects to the issue or accepts things as they are. At some point either a person objects or the flow becomes the new natural flow. A person is not required to alter the natural flow of water to prevent damage. In fact, in some situations it would actually be illegal to alter the natural flow of water. In addition, when one does alter the flow, they open up themselves to new objections if the new path affects anybody adversely. The clock starts running when damage is first realized at the latest but could start from the time of the alteration.

Along with that, it must be determined that op or his predecessor has done something to alter the natural flow which resulted in any claimed damage. Again, one is not required to alter the natural flow to prevent damage. It is if a person alters the natural flow they become Liable for the resulting damages.

I suspect there is a possibility the statute of limitations defense may not be a complete defense to all claims. While the attorney could seek to have some claims dismissed, it may preclude him/her from bringing in some facts that cannot be brought in otherwise. Of course that is a WAG but it's a possibility. There are surely others as well.

I inherited no liability for an act of nature nor of negligence of the previous owner - the road was damaged before I purchased the property. In fact, the road is in the same condition as it was when my predecessor in interest purchased the property.

Idaho uses the Natural Flow Theory/Civil Law Rule that imposes a reasonableness requirement to resolve surface water disputes arising in rural areas.

Under this rule, improving landowners are free to make reasonable use of their lands, even if this causes harmful changes in surface water flows.

What constitutes a "reasonable" use is determined on a case-by-case "in accordance with general principles of fairness and common sense.”

My preexisting driveway made common sense when it was constructed and is reasonable. Rain water and melting snow is not controlled by me and I made every “reasonable” effort to divert water from my property from running onto the road.

The Plaintiff objected in 2009. Therefore, each and every claim is barred by Idaho Code §5-218. Statutory liabilities, trespass, trover, replevin, and fraud. Within three (3) years; Idaho Code §5-219, Actions against officers, for penalties, on bonds, and for professional malpractice or for personal injuries. Within two (2) years; and Idaho Code §5-224. Actions for other relief - an action for relief not hereinbefore provided for must be commenced within four (4) years after the cause of action shall have accrued.

The Plaintiff has missed the boat.

Thanks so much for your input.