Alexander Levine
Alexander Levine (Handout)

It is generally an unlikely occasion in the practice of law when a decision from the 19th century will play a pivotal role in the outcome of a current case. However, such is the situation when your next-door neighbors are beavers. As this article will explain, flood damage to a neighbor’s property caused by acts of human neighbors is actionable, but if the flooding is caused by acts of animals inhabiting the neighbor’s property then no liability shall be imposed.

Imagine this scenario: An individual’s neighbor joyfully discovers that beavers inhabit their property. The neighbors are equally joyful to witness that the beavers are thriving and have built a dam on the pond located on their property. Notwithstanding the euphoria the neighbors are feeling, the dam creates the unfortunate consequence of causing significant flooding onto the individual’s property as well as an abutting public road. The individual regularly complains to the town supervisor, but aside from sending letters to the neighbors advising them to remove the beavers or the town will take action, no action is ever undertaken by the town.

As the years pass while the individual waits in vain for the town to act, over 20 feet of the individual’s property is under water due to the constant flooding from the beaver dam. Adding salt to the wound is that not only has the flooding deprived the individual of over 20 feet of his property, but it threatens to destroy his septic tank and has caused his property to be invaded by rodents, snakes and other wildlife. Aside from hiring the Humane Society to install drainage pipes into the dam which have completely failed to alleviate the flooding, the neighbors vehemently refuse to remove their beloved beavers.

Faced with the lack of any corrective action by the town supervisor and the neighbors as well as the diminution in the value of his property from the flooding and the threat of more damage to come, this individual believes that there must be a legal remedy, either by an injunction to remove the beavers or at the very least, an assessment of damages, to be obtained in the judicial system by filing a lawsuit against his neighbors. He could not be more wrong.

Established Common Law

In 1875, the New York Court of Appeals decided Vanderwiele v. Taylor.1Vanderwiele entailed flooding of the plaintiff’s property from water that descended from the defendant’s property. The Court of Appeals held that the defendant could not be “…compelled to improve or drain his lot for the benefit of the [plaintiff]; so long as he leaves his lot in its natural condition…”2 In applying this common law, the Court of Appeals determined that the plaintiff had remedies he could pursue with the New York City authorities in order to rectify the problem with the flooding from the defendant’s property.

Even more significant to the Court of Appeals was the fact that the plaintiff never complained or notified the defendant of the problem that water from the defendant’s property was flowing onto plaintiff’s property causing the flooding. The Court of Appeals felt that the defendant had no duty to plaintiff until the defendant was notified by the plaintiff about the damage being caused by the water.3

Cases That Followed

More than 100 years later in 1980, the Appellate Division, Fourth Department, decided the case of Lichtman v. Nadler4 where the court affirmed the Special Term’s dismissal of plaintiffs’ complaint which alleged a cause of action for private nuisance based on harmful consequences to their property due to mosquitoes and unpleasant odors coming from the natural accumulation of stagnant water on adjoining land. In dismissing plaintiff’s complaint by way of summary judgment, the Special Term invoked the “established common-law rule that a landowner is under no affirmative duty to remedy conditions of purely natural origin upon his land even though they are dangerous or inconvenient to his neighbors.”5

It is noteworthy that two appellate justices dissented in Lichtman in a well-articulated and insightful opinion. The dissenters argued that the aforesaid common law was “outdated and outmoded.”6 The dissenters thoughtfully opined that although the aforesaid common law “does find support in the Restatement (Second) of Torts,” Professor William Prosser “points out that this rule of nonliability ‘was obviously a practical necessity in the early days, when land was very largely in a primitive state…[b]ut it is scarcely suited to cities, to say that a landowner may escape all liability for serious damage to his neighbors, merely by allowing nature to take its course. There are indications that a different rule is developing as to urban centers.’”7

The dissenters further explained that in an urban setting, an inspection of one’s property is not a burden as the properties tend to be smaller than those located in rural areas. As such, nuisances such as offensive odors and, of course flooding, will have a far greater negative impact upon densely populated areas as opposed to residences that are situated far apart from one another. Thus, the dissenters reasoned, shielding landowners from liability regarding the acts of wildlife on their property bears no rationale in the 20th century.8

Then in 1992, the Appellate Division, Third Department, held in Frank v. Garrison9 that “[o]wners of rural land have no affirmative duty to remedy conditions of a purely natural origin upon their property,” and thus affirmed the trial court’s dismissal of plaintiffs’ action which had sought to compel the defendants to remove the beavers from their property and for compensation for the damage caused to their land as a result of the flooding. Plaintiffs had alleged that defendants “intentionally suffered and permitted” the beavers to remain on their land, but the Third Department, citing both Vanderwiele and Lichtman, found that the defendants had no affirmative duty to remedy “the work of wildlife, even though such conditions may cause inconvenience or even damage to the property of neighbors.”10

In a similar case in Putnam County, involving damage to the plaintiffs’ property caused by a beaver dam located on a neighbors’ property, the Appellate Division, Second Department, followed the decision in Garrison and dismissed plaintiffs’ complaint. The author was the lead attorney for the plaintiffs in this action.11

Therefore be warned that in a situation stemming from property damage caused by a neighbor’s beaver dam, or any act of wildlife, with the neighbor’s knowledge and assent, even in a developed residential area such as Putnam County, the ancient common law that “[o]wners of rural land have no affirmative duty to remedy conditions of a purely natural origin upon their property,” still governs leaving homeowners such as the individual described above without any legal remedy in equity or law.

Alexander Levine is an administrative law judge with the Workers’ Compensation Board. He previously practiced land-use law and civil litigation as a partner with Levine & Vaysberg in Brooklyn. While at the firm, he represented the plaintiff in ‘Macris v. Matta’ which is mentioned in this article. Marissa Larsen, a paralegal, assisted in the preparation of this article.

Endnotes:

1. 65 NY 341.

2. Id. At 341.

3. Id. At 347.

4. 74 AD2d 66.

5. Id. at 67.

6. Id. at 69.

7. Id. at 72 citing Prosser, Torts [(4th ed), §57, p 355].

8. Id. at 72-73.

9. 184 AD2d 852.

10. Id. at 853.

11. Macris v. Matta, 101 AD3d 957 [2012].