Drainage law

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Drainage law is a specific area of water law related to drainage of surface water on real property. It is particularly important in areas where freshwater is scarce, flooding is common, or water is in high demand for agricultural or commercial purposes.

Contents

In the United States

In the United States, regulation of drainage is typically done on the state and local level. In addition to whatever statutes or local ordinances may be in effect in a given locality, there are three basic legal doctrines which the various state courts recognize. [1]

In the State of Michigan, drainage law is so important that most counties still elect a drain commissioner to regulate drainage of surface water.

Common enemy doctrine

The common enemy doctrine is a rule derived from English common law. It holds that because surface water is a "common enemy" of landowners, each landowner has the right to alter the drainage pattern of his land (for example by building dikes or drainage channels) without regard for the effects on neighboring parcels, as long as that water flows to where it otherwise would have naturally flowed. Typically, a landowner can capture surface water (e.g. by rain barrels or dams) as well, and lower landowners will not have a cause of action unless the diversion is malicious. [2] This rule is followed by approximately half of the U.S. states, although some states have modified the doctrine to hold landowners liable for negligent damage to parcels of neighboring landowners.

Civil law rule

The civil law rule, so named because it is derived from the civil law systems of France and Spain, is effectively the opposite of the common enemy doctrine. It holds that the owner of a parcel of lower land must accept the natural drainage from higher parcels and cannot alter the drainage pattern of his own land to increase the drainage flow onto lower parcels. For this reason the rule is sometimes referred to as the "natural flow rule".

Application of the civil law rule in its purest form would inhibit development of land because virtually every improvement on a parcel alters natural drainage. For this reason this rule has been modified in those jurisdictions that use it in order to permit reasonable changes in natural flow, often weighing the competing interests of neighboring landholders with the benefit of the development of the parcel.

Reasonable use rule

The reasonable use rule presents an alternative to both the common enemy doctrine and the civil law rule. It allows a landowner to make "reasonable" alteration to the drainage pattern of his parcel, with liability only when the alteration causes "unreasonable" harm of neighboring parcels. Judicial mitigation of the common enemy doctrine and civil law rule often results in an approximation of the reasonable use rule. [2]

Because the reasonable use rule presents a subjective standard, courts will often employ a balancing test to determine whether a landowner is liable to neighbors for alteration of drainage. For example, under the Restatement of Torts, the test was:

  1. Was there reasonable necessity for the property owner to alter the drainage to make use of their land?
  2. Was the alteration done in a reasonable manner?
  3. Does the utility of the actor’s conduct reasonably outweigh the gravity of harm to others?

In the United Kingdom

In the United Kingdom the Land Drainage Act 1991 decrees drainage of land in England and Wales, but does not cover sewerage and water supplies but the actual process of draining land itself. The act defines who is responsible for various aspects of land drainage and the different areas in which the law applies. [3]

See also

Further reading

Related Research Articles

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<span class="mw-page-title-main">Drainage basin</span> Land area where water converges to a common outlet

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<span class="mw-page-title-main">Stormwater</span> Water that originates during precipitation events and snow/ice melt

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<span class="mw-page-title-main">French drain</span> Sub-surface drainage system


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<span class="mw-page-title-main">Balancing lake</span> Element of flood management system

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<span class="mw-page-title-main">Falconbrook</span> Covered river in London, England

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<i>Cline v. American Aggregates Corp.</i> Supreme Court of Ohio case

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<span class="mw-page-title-main">Water law in the United States</span>

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<span class="mw-page-title-main">Holderness Drain</span> English water project

Holderness Drain is the main feature of a Land Drainage scheme for the area of Holderness to the east of the River Hull in the East Riding of Yorkshire, England. Construction began in 1764, and several notable civil engineers were involved with the scheme over the years. Despite the high costs of the initial scheme, it was not particularly successful, because of the refusal of the ship owners of Hull to allow an outlet at Marfleet. They insisted that the water be discharged into the River Hull to keep the channel free of silt. Following a period of agricultural depression and the building of new docks in the early 1800s, an outlet at Marfleet was finally authorised in 1832. A high level system still fed upland water to the Hull, but the low level system discharged into the Humber, where levels were considerably lower. Following the success of steam pumping on the Beverley and Barmston Drain, the trustees looked at such a possibility for the Holderness Drain, but the development of the Alexandra Dock in the 1880s and then the King George V Dock in 1913 provided a solution, as the docks were topped up with water pumped from the drain, to lessen the ingress of silt-laden water.

<span class="mw-page-title-main">Gravity sewer</span> Conduit which removes wastewater by use of gravity

A gravity sewer is a conduit utilizing the energy resulting from a difference in elevation to remove unwanted water. The term sewer implies removal of sewage or surface runoff rather than water intended for use; and the term gravity excludes water movement induced through force mains or vacuum sewers. Most sewers are gravity sewers because gravity offers reliable water movement with no energy costs wherever grades are favorable. Gravity sewers may drain to sumps where pumping is required to either force sewage to a distant location or lift sewage to a higher elevation for entry into another gravity sewer, and lift stations are often required to lift sewage into sewage treatment plants. Gravity sewers can be either sanitary sewers, combined sewers, storm sewers or effluent sewers.

References

  1. Cole, Daniel H. (1989). "Liability Rules for Surface Water Drainage: A Simple Economic Analysis". George Mason University Law Review. 12 (1): 35–55.
  2. 1 2 BarBri Real Property Outline 2004, p. 145
  3. "Land Drainage Act 1991". The National Archives. Archived from the original on 2010-10-17. Retrieved 15 August 2012.