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-2- A. This is a difficult question. In general, a property owner is liable for caus ing substanti a 1 and damaging i ncreasesi n flooding. Li abi 1 ity depends in part on the law of the state in which the case arises as well as the nature and purpose of the defendant's alteration of the previous drainage patterns or stream flow and the type of waters affected. Traditionally, the issue of liability for drainage or flood flow modification has been decided on the basis of one or the other of two contrasting rules. The "Common Enemy Rule" followed by a decreasing number of states view storm drainage and flood waters as a "common enemy" which every landowner has a right to de- fend himself against without liability to other parties. In contrast, "Civil Law Rule" holds that a person who interferes with the natural flow of surface waters so as to interfere with the use and enjoyment of another person's land is subject to liability under reasonably anticipated conditions but not for an "act of God." In recent years, many states have embraced a compromise "Rule of Reasonable Use." This rule holds that an upstream owner may interfere with the natural flow of water only if he acts reasonably with regard to the interest of others. In general, this means he may not substantially increase flooding on other lands. (See Chapter 3.) There is thus no clearcut way to predict whether a property owner will be liable for modifying drainage and flood flows. How- ever, anyone undertaking such modifications does so at his or her peril. 3. Q. Are subdividers and builders liable to purchasers for subsequent fl ood damages? A. At common law, sellers had no duty to investigate or disclose flood or other hazards although they could not lie about known hazards or intentionally mislead purchasers. The doctrine of caveat emptor (let the buyer beware) has been partially or substantially *References are provided to casebook materials supplied to Institute participants. . . . ~