Recently, on September 14, 2012 in the decision of Kurpiel v. Hicks, Record No. 112192, the Virginia Supreme Court reversed a Circuit Court’s demurrer, and allowed two landowners’ case of trespass to proceed against a neighboring developer. The development activities were alleged to have caused storm water overflow onto the claimant landowners’ properly, and they sued in Stafford County.
Judge Deneke had sustained the developer’s demurrer, holding that the storm water intrusion, even if true, was not an actionable trespass. In reversing, the Virginia Supreme Court noted that Virginia follows the modified common law rule applicable to surface water, which provides that surface water is a common enemy that landowners may fight off as best they can, but they must do so reasonably and in good faith, and not wantonly, unnecessarily or carelessly.
The court held that the plaintiffs had sufficiently pled that the developer had breached this modified common law rule, and so allowed the case to proceed. Whether the law of trespass will be expanded in a similar manner to other invasive results of development remains to be seen, but this case shows the importance, regardless, of developers’ consideration of storm water impacts from their developments.
Minimally, it would seem this same rationale could be used to hold land disturbing contractors responsible in tort to impacted neighboring property owners under applicable facts.