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Click here for the full text of this decision FACTS:Kevin Dietrich, Denise Dietrich and Seth Dietrich, a minor child, appeal from the trial court’s 1. directed verdict in favor of Harold C. Goodman Jr. and Winford J. Goodman; and 2. denial of their motion for new trial. In August 1998, the Dietrichs purchased a house adjacent to the Goodmans’ home. Two months later, during a torrential thunderstorm, the Dietrichs awakened to find several inches of water on the first floor of their home. Mr. Dietrich, fearing that his neighbor might also be in danger of flooding, awakened the Goodmans in the early morning hours to alert them to the danger. The Goodman family immediately began digging two ditches to drain water out of their backyard and divert it along both sides of their house. The Dietrichs and the Goodmans also opened fence gates to facilitate the flow of water to the street in front of their respective homes. The Dietrich home was heavily damaged by the flood water. In a subsequent investigation into the cause of the flooding, an engineer located the drain and discovered that it was occluded by dirt, roots, and several bricks. The engineer, later assisted by the Goodmans, cleared the drain. Eventually, the storm sewer was relocated and moved onto country club property. Asserting claims of negligence, violations of the Texas Water Code �11.086, and trespass, the Dietrichs filed suit against the Goodmans. The Dietrichs also sought exemplary damages alleging malice. The trial court granted the Goodmans’ directed verdict on all claims other than simple negligence. A jury subsequently found the Goodmans were not negligent. Thereafter, the Dietrichs filed a motion for new trial based on their claims of statutory liability and malice. The motion was denied, and the Dietrichs pursued this appeal. HOLDINGAffirmed. Texas Water Code �11.086(a) prohibits a person from diverting or impounding the natural flow of “surface water” in a manner that damages the property of another by the overflow of the water diverted or impounded. Unless or until the legislature amends the statute, the court reluctantly holds that the term “surface water,” as used in �11.086, means diffused surface water, i.e., water “which is diffused over the ground from falling rains or melting snows, and [it] continues to be such until it reaches some bed or channel in which water is accustomed to flow.” City of Keller v. Wilson, 86 S.W.3d 693 (Tex. App. – Fort Worth 2002, pet. filed). In other words, the chief characteristic of “surface water” is that it does not follow a defined course or channel and does not gather into or form a natural body of water. Dalon v. City of DeSoto, 852 S.W.2d 530 (Tex. App. – Dallas 1992, writ denied). Where rain water is under control by a ditch, tank, pond or pipe, it no longer qualifies as surface water. Here, the water diverted onto the Dietrichs’ property on account of the occluded drain was runoff from the country club property behind the Dietrichs’ and Goodmans’ homes. The water was concentrated and directed toward the drain by a shallow, but readily visible, natural gully, that extended 60 feet or more up into the wooded area of the country club property. When rain water fell directly on the tennis courts and wooded acreage on the night of the flood at issue, it undeniably possessed the character of surface water. When the water entered the channel leading to the storm sewer, however, its character changed. The water flowed in a well-defined bed, which led toward the drain inlet. As the rainwater flowed down the channel to the drainage inlet in the Goodmans’ backyard, it was blocked by roots, mulch and dirt. Thus, the water flowed across the corner of the Goodman’s backyard onto the Dietrichs’ property which had a lower elevation. Until it reached the blocked drain, the water was under the control and direction of a watercourse and thus, it no longer qualified as surface water. As such, there was no diversion of surface water when the rain water was redirected from the drain inlet. OPINION:Brister, C.J.; Brister, C.J., Hudson, and Murphy, JJ.

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