by: Patrick A. Randolph, Jr.
Professor of Law
UMKC School of Law
randolphp@umkc.edu

WATERS AND WATER COURSES; LITTORAL RIGHTS; DAMS: Landowner that breached an unsafe dam on its property, resulting in a lower lake level is not liable to neighbors whose property value declined because of lower levels in the lake.

Bird v. Trust Company of New Jersey, 651 N.Y.S.2d 246 (App. Div. 1996).

The Department of Environmental Conservation ("DEC") inspected the dam on defendant's property and found it to be in a poor, unsafe condition. Based on the DEC determination, the defendants breached the dam (and were given a permit to do so by the DEC). The breached dam resulted in the abatement of a potentially unsafe condition, but an adjoining landowner brought an action based upon the argument that the neighbor had obtained a reciprocal prescriptive easement (?) to use the lake, and that the lowering of the lake's level reduced the value of plaintiff's land. The court held that the defendants were not liable on several grounds: First, the court refused to find that a reciprocal prescriptive easement arose (whatever such a creature is). Second, the court held that even if the plaintiff had an easement, this did not require defendant to maintain the dam. Citing a 1995 New York case, the court held that so long as those with easement rights in an artificual lake are permitted to repair a dam themselves, they cannot complain when the party on whose land the dam lies breaches it when it becomes unsafe. Finally, the court stated that the defendants would not be liable in any event because they were abating a nuisance.

Comment 1: Although this little case would appear to be of limited application, there probably are over a hundred thousand "time bombs" in suburban areas throughout the country, consisting of real estate subdivisions oriented around an artificial lake that the developer created and then abandoned, without providing for assessments to maintain the dam and sometimes without creating a homes association to look after it. Sometimes the owner of the land on which the dam exists is not even within the subdivision. This case holds, quite properly, that in such cases the homeowners have to get together, one way or another, to look after the dam. At best, they have only a right of access to repair it. And, if the New York court is taken literally, even that right might be lost if the homeowners permit the dam to fall into such disprepair that the owner of the servient land can claim that it is a dangerous nuisance.

Comment 2: There are one or two cases in Missouri in which a judge in circumstances such as those described above has ordered an equitable lien imposed upon all littoral lands to pay for the maintenance of the dam, even though there is no Declaration imposing the costs of maintenance upon these properties. Weatherby Lake Improvement Co. v. Sherman, 611 S.W.2d 326 (Mo. App. 1980); Lake Tishomingo Property Owners Association v. Cronin, 679 S.W.2d 852 (Mo. 1984) (equitable increase in assessments authorized by Declaration). These cases, in the editor's view, are wrong, but they may be useful for lawyers advising clients in this situation.

Comment 3: In Annin v. Lake Montowese Dev. Company, Inc., 759 S.W.2d 240, Mo. App. 1988) A development corporation that had the right to adjoining lot owners to levy the assessment for purposes of maintaining the dam was found to have no duty to impose such assessment or to carry out such maintenance.

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