Damage to Property Located at a Border

Property Damage at Borders: A Legal Overview

Property damage at international borders raises a deceptively simple question: who pays when harm crosses a line on a map? Historically, courts treated border-related property damage much like any other tort, focusing on where the harmful act occurred and whether the damage was foreseeable. Over time, however, border law—especially in the United States—has shifted toward protecting government decision-making rather than compensating injured landowners, particularly when national security is invoked. This shift is clear when comparing older state court decisions with modern federal cases brought after the passage of the REAL ID Act.

Venue Lies in Either Country

One of the earliest examples comes from Armendiaz v. Stillman (1881), a Texas Supreme Court case involving cross-border flooding along the Rio Grande. In that case, James Stillman placed an obstruction in the riverbed on the Texas side, which altered the current and caused flooding on Eugenia Armendiaz’s land in Mexico, destroying gardens, trees, stables, and buildings.

A lower court dismissed the case, reasoning that Texas courts lacked jurisdiction because the damage occurred in Mexico. The Texas Supreme Court reversed, holding that when an act committed in one jurisdiction causes injury to land in another, venue may lie in either place. The court focused on causation and fairness rather than sovereignty, treating the international border as a factual detail rather than a legal shield.

The Discretionary Function Exception Applied to Boundary Disputes

More than a century later, Gringo Pass, Inc. v. United States reflects a very different approach. Martha Gay owned and operated a grocery store and gas station near the Lukeville Port of Entry in Arizona for nearly four decades without flooding. After construction of a fifteen-foot border fence completed in 2008, severe flooding damaged her property following a storm.

The fence was built under the authority of the REAL ID Act, which allows DHS to waive environmental and land-use laws for border infrastructure. During planning, the Organ Pipe Cactus National Monument warned that the fence could block natural water flow and increase flood risk, but DHS proceeded anyway.

When Gringo Pass sued under the Federal Tort Claims Act, the government successfully invoked the discretionary function exception. The court held that fence design and placement involved policy judgments tied to border security, even though flooding risks were foreseeable and documented. As the court noted, second-guessing such decisions was precisely what the exception was meant to prevent.

Comparative International Law: A Different Model

International law takes a notably different approach to cross-border harm. Under customary international law, states have an obligation not to allow activities within their territory to cause serious damage to another state. This principle was famously articulated in the Trail Smelter Arbitration, where an international tribunal held that Canada was responsible for pollution drifting into the United States.

That principle has since been codified and expanded by the International Law Commission’s Draft Articles on the Prevention of Transboundary Harm from Hazardous Activities, which emphasize due diligence, risk assessment, and cooperation rather than immunity.

International courts have reinforced this approach. In Pulp Mills on the River Uruguay (Argentina v. Uruguay), the International Court of Justice held that states must assess environmental risks before undertaking activities that may cause cross-border harm.

Similarly, in Certain Activities Carried Out by Nicaragua in the Border Area (Costa Rica v. Nicaragua), the ICJ required compensation for environmental damage caused by activities near a shared border.

Together, these cases highlight a sharp contrast: while international law increasingly treats cross-border property and environmental harm as compensable and preventable, U.S. border law has moved toward insulating the government from liability, even where damage is predictable and localized. That tension raises hard questions about whether border security should override basic property protections—and whether U.S. doctrine is drifting away from broader legal norms governing transboundary harm.