Landowners lose suit against neighbor alleging trespass by waterflow
The Droncheffs sued the Kerrs in Livingston County Circuit Court, alleging that every time it rains, the Kerrs' holding pond overflows and floods the Droncheffs' property. One of their claims was that the flooding constituted a trespass-nuisance, however, the Court held that this theory of action applied only to claims against the government and had been "eliminated" by the Engler Majority Supreme Court in an earlier decision. With regard to a trespass by diverting water flow, the Court held that the Droncheffs hadn't met their burden of proof.
While the Droncheffs presented evidence that the topography of the land had been manipulated during development of the parcels, they could not prove to what extent these changes had influenced the natural flow of water. Upland properties have the right to continue flowage "downhill," however, they do not have the right to increase the burden on lower-lying properties. Given the state of the proofs, the Droncheffs couldn't prove that the Kerrs had increased the flow of water or the burden on their property.