Does the provision of storm sewer service by a municipality constitute a non-natural use of land?

Tock, supra, is the leading authority in this regard and there would seem to be no basis for distinguishing it on these facts. I must therefore conclude that the provision of storm sewer service by a municipality does not constitute a non-natural use of land so as to invoke the principles in Rylands v. Fletcher.

If so, did storm water escape from the defendant's property? The issue of whether storm water escaped from the defendant's property is a question of fact. It would seem, however, that there is no evidence that water actually came onto the plaintiff's property from the storm main, as the blockage was at some location in the storm lateral. As such, the water that the plaintiff received was all from the plaintiff's property. The rule in Rylands v. Fletcher arose in an attempt to deal with potential danger to neighboring land from the escape of substances that were in some sense or another not naturally upon the land. It does not seem that the failure of water to drain through the lateral could constitute an "escape" in this sense.

Did the defendant's use of its storm drainage system constitute an unreasonable and substantial interference with the plaintiff's property thereby constituting a compensable nuisance? Although, on the facts of Tock, above, the rule in Rylands v. Fletcher did not apply, Wilson J. found liability in nuisance, concluding that the escape of water onto the plaintiff's land constituted an "unreasonable interference with the appellant's use and enjoyment of the property..." (p. 1206).