Question: We are experiencing flooding in the English basement of our townhouse due to a neighbor's failure to drain her roof water into a wastewater drain or to take some other action to eliminate this water from our rear yard. Our house is situated on a downslope from this neighbor's townhouse.

We have asked the neighbor to take steps to properly drain this water, but she has refused. Last summer, at our expense, we installed a French drain in our backyard and a 2" concrete step to serve as a water barrier.

Just recently, our basement flooded again. What legal remedy do we have to compel our neighbor to correct this problem. Is she liable for damages done to date? Could we require her to pay for the costs of installing the French drain, as well as the interior damage?

Answer: In law school, we learned about a concept known as "riparian rights." This basically states that water which flows naturally downhill cannot be diverted by the higher ground property owner, since the lower ground owners have the right to benefit from the water's natural flow. If the higher ground property owner does, in fact, divert the water, that owner may be held personally responsible for damages.

Many legal terms are derived from Latin. "Riparian" comes from the Latin word "riparius" -- of or belonging to the bank of a river. While riparian rights are generally restricted to properties which sit along the banks of rivers or streams, I thought that the analogy to your case would be of interest.

If the rainwater flowed naturally down hill from your neighbor's property, it could be argued that this is "an act of God" and thus your neighbor would have no responsibility. However, as you have described the problem, this is not a natural flow of water. Your neighbor -- or someone in her chain of title many years ago -- built her townhome, which appears to be the cause of your water damage.

You have several options.

First, I would consult a professional engineer who is versed in water-related issues. This engineer should investigate the situation and give you a written report. This report should also address possible solutions to the problem as well as the costs of these solutions. The report will cost you some money, but should you ultimately decide to file suit against your neighbor, you will need to have an engineer to testify as to the source and cause of your water damage.

Once you have this report in hand, you (or your attorney) should make a formal demand against your neighbor to correct the problem. A copy of the engineer's report should be attached to your letter. Give your neighbor two to three weeks to respond.

Sometimes, such a letter (especially if it comes from a lawyer) will do the trick. In any event, if the deadline has passed with no response, you should personally telephone (or visit) with the neighbor and find out what she plans to do. It is important to take these steps, especially if you will ultimately be going to Court. Judges always try to get disputing parties to try to reach an amicable settlement, and it will be persuasive to a Judge that you have made attempts to resolve the dispute before filing your lawsuit.

If money may be the stumbling block, and the reason that your neighbor is not willing to cooperate, you might consider offering to pay a portion of the costs to remedy the situation. While I appreciate that this suggestion probably will not sit well with you, I can assure you that should you file suit, you will probably pay more in legal fees than you may have to pay to your neighbor.

Another suggestion is to contact your local housing code enforcement agency and ask them to investigate the matter. This may take some time getting the housing inspectors out to the property, but the inspectors may determine that your neighbor is not in compliance with applicable housing and building codes, and will force the neighbor to make the corrections.

Additionally, should you decide to sue, a positive report from the housing inspector will be useful as you present your case to the Judge.

Finally, you have the right to file suit against your next door neighbor. Your complaint will allege negligence, based on improper drainage. You will ask for damages, which will include the cost to repair your English basement as well as the cost for the installation of the French drain. You will also ask the Court to reimburse you for the money you paid to your attorney.

I must caution you, however, that should you prevail in Court, you probably will not get a judgment for the French drain installation, and you definitely will not get an award for your legal fees.

As for the French drain you installed, the Court may consider that this is an improvement to your house, even though the only reason you installed it was to protect yourself against your neighbor's drainage problem.

Regarding your legal fees, our Courts here in the United States follow what is known as "the American Rule," namely each side pays his/her own attorneys fees. There are some exceptions to this rule, including:

• if there is a violation of a consumer protection law which allows for attorneys fees to the prevailing party

• if there is a written document signed by both parties that specifically provides that attorney fees will be awarded against the losing party

• if the Court wants to punish one of the parties in the litigation. This will rarely happen unless the situation is so egregious that the Judge believes that punishment (including legal fees) is warranted.

Litigation should be your last resort. It is time consuming, expensive, and uncertain.