Common Enemy or Unilateral Threat: Why Jurisdictions Need to Become Reasonable in Regards to Diffuse Surface Waters

JurisdictionUnited States,Federal
CitationVol. 41
Publication year2022


Creighton Law Review

Vol. 41


In 2002, urban properties accounted for less than three percent, or 59.6 million acres, of the 2.3 billion acres of property in the United States.(fn1) Even though urban properties comprised less than three percent of the total property area, these properties housed seventy-nine percent of the U.S. population.(fn2) Between 1945 and 2002, the Census Bureau reported the United States' population doubled.(fn3) During that same period, urban property area quadrupled from approximately fifteen million acres in 1945 to roughly sixty million in 2002.(fn4) In 2006, the private construction industry spent $11.3 trillion.(fn5) The expenditures of the private construction industry are approximately equal to eighty-five percent of the United States' 2006 gross domestic product of $13.16 trillion.(fn6) These construction projects included the erection of commercial structures including warehouses, office buildings, multifamily homes, lodging, and shopping centers.(fn7) For example, each of the 2256 Wal-Mart Supercenter locations averaged 187,000 square feet as of January 31, 2007.(fn8) This equates to Wal-Mart Supercenter locations occupying more than 420 million square feet of property.(fn9)

More broadly, urban properties in the United States are increasingly covered with impermeable surfaces.(fn10) In Salt Lake City, Utah, the city's total paved surface area was 170 square kilometers in a 560 square kilometer metropolitan area.(fn11) The United States also maintains 4,165,110 kilometers of paved roads.(fn12) Together, the large amount of impermeable surfaces used for commercial structures, roads, and parking lots, means that vast amounts of property are no longer able to naturally absorb or drain away diffuse surface waters.(fn13) Despite the significant use of concrete and other impermeable surfaces in modern building techniques, diffuse surface water problems caused by development began almost two hundred years ago.(fn14)

Throughout the nineteenth century, courts struggled to find a legal principle that balanced the interests of landowners who wished to develop their properties with the interests of landowners who would be affected by the others' development activities.(fn15) During the nineteenth century, this struggle resulted in a majority of courts adopting one of two dominant legal principles to adjudicate diffuse surface water disputes: the common enemy doctrine or the civil law rule.(fn16) The common enemy doctrine allowed landowners to drain or repel diffuse surface waters upon neighboring properties without accounting for the consequences to other landowners.(fn17) Civil law rule jurisdictions allowed higher elevated properties to drain diffuse surface waters onto lower properties without liability as long as the lower properties were only subjected to diffuse waters, which would have naturally drained upon the lower properties.(fn18) Recently, state courts have begun adopting a third legal principle in diffuse water cases, the reasonable use doctrine.(fn19) The reasonable use doctrine imposes liability on a landowner who drains or repels diffuse surface water upon neighboring properties after considering the factual circumstances of each case.(fn20) However, in order to appropriately apply these doctrines, one must be able to define what constitutes diffuse surface water.(fn21)

Diffuse surface waters are those waters snow and rain normally create.(fn22) Diffuse waters, which follow no definite course, are those waters which are lost by evaporation, by percolation, or by reaching a substantial body of water or a defined watercourse into which they flow.(fn23) Additionally, diffuse surface waters are defined as those waters which do not flow in a defined bed, bank, or channel, but seem to wash over the face of the property with no permanent source.(fn24) Thus, diffuse surface waters may not include waters which are contained within a defined lake, pond, or watercourse and, in such situations, drainage of these bodies of water will result in very different legal consequences.(fn25)

Following the political theorist John Rawls ("Rawls"), this Note argues that the principle of justice as fairness can only be served when diffuse surface water laws promote equality amongst the competing interests of neighboring landowners.(fn26) Following a Rawlsian approach, diffuse surface water laws should only be those laws which individuals without personal prejudice or interests would accept if operating in a state of equality.(fn27) Because diffuse surface water laws do not promote a Rawlsian view of equality, unless they contain a reasonableness component, states should add a reasonableness component to their diffuse surface water laws or adopt the reasonable use doctrine.(fn28)

This Note proceeds in three sections.(fn29) The Background provides a general overview of Rawls' theory of justice as fairness.(fn30) The Background then examines the three general rules that state courts apply in diffuse surface water cases and the state law variations on these general rules.(fn31) The Argument section demonstrates how courts' applications of the common enemy doctrine and the various versions of the civil law rule have inequitably and unjustly allowed commercial developments to burden neighboring properties with diffuse surface waters.(fn32) First, the Argument proposes that jurisdictions violate Rawls' theory by arbitrarily bestowing property rights upon certain groups of landowners to the detriment of other landowners.(fn33) The Argument then proposes that an arbitrary assignment of property rights amongst landowners is a violation of the Rawlsian view that all individuals should be placed in a position of equality.(fn34) Additionally, the Argument proposes that the reasonable use doctrine, or a reasonableness element, should be adopted in any jurisdiction that currently does not impose such a standard in its diffuse surface water laws.(fn35) Furthermore, the Argument proposes that by adopting the reasonable use doctrine or grafting a reasonable element onto the common enemy doctrine or civil law rule, all landowners will be treated equally in compliance with Rawls' theory of justice.(fn36) Therefore, this Article will propose that the adoption of the reasonable use doctrine or a reasonableness exception to the civil law rule and common enemy doctrine will lead to diffuse surface water laws which comply with a Rawlsian theory of justice.(fn37)



Political theorist John Rawls' ("Rawls") theory of justice as fairness provides a framework from which to analyze questions of justice.(fn38) In an attempt to determine what justice actually entails, Rawls developed a systematic arrangement of the ideas individuals have about what is just.(fn39) Rawls proposed that individuals without knowledge of their place in society, natural abilities, intelligence, and psychological propensities would agree to principles of justice which promote equity.(fn40) These principles would then govern the duties and obligations expected from members of the individuals' society.(fn41) Thus, Rawls' theory of justice as fairness is a view that members of society would choose to be governed by laws which promote equality.(fn42)

Rawls premises his conception of justice on the idea that society determines the principles of justice by an original agreement.(fn43) The original agreement is compromised of the principles of justice that free and rational individuals would accept if they were placed in a position of equality to regulate all future forms of government.(fn44) According to Rawls, the hypothetical situation of equality is the original position.(fn45) In the original position, individuals do not know their place or status in society.(fn46) Because individuals do not know their status in society, they are also unaware of their individual biases and prejudices, which are normally based upon class position, social status, or natural abilities such as intelligence, strength, and psychological propensities.(fn47) In the original position, individuals are left with a sense of rationalism, wanting to meet their desired ends by the most effective means, because they do not know how the rules will affect them.(fn48) Thus, individuals in the original position are placed behind a veil of ignorance when choosing the principles of justice.(fn49) Operating behind the veil of ignorance, individuals develop rules that do not advantage or disadvantage any individual solely because of social circumstances or natural abilities.(fn50) Because individuals do not know whether the chosen rules will advantage or disadvantage them, they do not possess incentives to design arbitrary principles that would favor their particular positions.(fn51) Under this incentive structure, the rules developed behind the veil of ignorance are just; the rules are just because the rules are the product of fair bargain.(fn52) Overall, Rawls' theory of justice is that justice is fairness.(fn53) The theory of justice as fairness expresses the idea that the initial principles of justice are determined behind the veil of ignorance, where individuals have an incentive to produce rules that are...

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