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 counties elect a drain commissioner to oversee water resources.

Common enemy doctrine

The common enemy doctrine is a rule derived from English common law. It holds that since surface water is a "common enemy" to 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 the U.S. states, although some states have modified the doctrine to hold landowners liable for negligent damage to the parcels belonging to 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 lower parcel of land must accept the natural drainage from those parcels above his, and cannot alter the drainage pattern of his own land to increase the drainage flow onto parcels lower than his own. For this reason, this rule is sometimes referred to as the "natural flow rule".

Application of the civil law rule in its purest form would inhibit the development of land, since virtually every improvement on a parcel would alter the natural drainage. For this reason, this rule has been modified in those jurisdictions that use it, 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 occurring when the alteration causes "unreasonable" harm toward 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

<span class="mw-page-title-main">Drainage</span> Removal of water from an area

Drainage is the natural or artificial removal of a surface's water and sub-surface water from an area with excess of water. The internal drainage of most agricultural soils is good enough to prevent severe waterlogging, but many soils need artificial drainage to improve production or to manage water supplies.

<span class="mw-page-title-main">Drainage basin</span> Area of land where precipitation collects and drains off into a common outlet

A drainage basin is an area of land where all flowing surface water converges to a single point, such as a river mouth, or flows into another body of water, such as a lake or ocean. A basin is separated from adjacent basins by a perimeter, the drainage divide, made up of a succession of elevated features, such as ridges and hills. A basin may consist of smaller basins that merge at river confluences, forming a hierarchical pattern.

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

Stormwater, also written storm water, is water that originates from precipitation (storm), including heavy rain and meltwater from hail and snow. Stormwater can soak into the soil (infiltrate) and become groundwater, be stored on depressed land surface in ponds and puddles, evaporate back into the atmosphere, or contribute to surface runoff. Most runoff is conveyed directly as surface water to nearby streams, rivers or other large water bodies without treatment.

<span class="mw-page-title-main">Sanitary sewer</span> Underground pipe for transporting sewage

A sanitary sewer is an underground pipe or tunnel system for transporting sewage from houses and commercial buildings to a sewage treatment plant or disposal. Sanitary sewers are a type of gravity sewer and are part of an overall system called a "sewage system" or sewerage. Sanitary sewers serving industrial areas may also carry industrial wastewater. In municipalities served by sanitary sewers, separate storm drains may convey surface runoff directly to surface waters. An advantage of sanitary sewer systems is that they avoid combined sewer overflows. Sanitary sewers are typically much smaller in diameter than combined sewers which also transport urban runoff. Backups of raw sewage can occur if excessive stormwater inflow or groundwater infiltration occurs due to leaking joints, defective pipes etc. in aging infrastructure.

<span class="mw-page-title-main">Storm drain</span> Infrastructure for draining excess rain and ground water from impervious surfaces

A storm drain, storm sewer, surface water drain/sewer, or stormwater drain is infrastructure designed to drain excess rain and ground water from impervious surfaces such as paved streets, car parks, parking lots, footpaths, sidewalks, and roofs. Storm drains vary in design from small residential dry wells to large municipal systems.

<span class="mw-page-title-main">Water resources law</span> Law and regulations that relate to water resources

Water resources law is the field of law dealing with the ownership, control, and use of water as a resource. It is most closely related to property law, and is distinct from laws governing water quality.

Riparian water rights is a system for allocating water among those who possess land along its path. It has its origins in English common law. Riparian water rights exist in many jurisdictions with a common law heritage, such as Canada, Australia, New Zealand, and states in the eastern United States.

Water right in water law refers to the right of a user to use water from a water source, e.g., a river, stream, pond or source of groundwater. In areas with plentiful water and few users, such systems are generally not complicated or contentious. In other areas, especially arid areas where irrigation is practiced, such systems are often the source of conflict, both legal and physical. Some systems treat surface water and ground water in the same manner, while others use different principles for each.

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

A balancing lake is a term used in the U.K. describing an element of an urban drainage system used to control flooding by temporarily storing flood waters. The term balancing pond is also used, though typically for smaller storage facilities for streams and brooks.

<span class="mw-page-title-main">Hatfield Chase</span> Human settlement in England

Hatfield Chase is a low-lying area in South Yorkshire and North Lincolnshire, England, which was often flooded. It was a royal hunting ground until Charles I appointed the Dutch engineer Cornelius Vermuyden to drain it in 1626. The work involved the re-routing of the Rivers Don, Idle, and Torne, and the construction of drainage channels. It was not wholly successful, but changed the whole nature of a wide swathe of land including the Isle of Axholme, and caused legal disputes for the rest of the century. The civil engineer John Smeaton looked at the problem of wintertime flooding in the 1760s, and some remedial work was carried out.

Tile drainage is a form of agricultural drainage system that removes excess sub-surface water from fields to allow sufficient air space within the soil, proper cultivation, and access by heavy machinery to tend and harvest crops. While surface water can be drained by pumping, open ditches, or both, tile drainage is often the most effective means of draining subsurface water.

The rule of capture or law of capture, part of English common law and adopted by a number of U.S. states, establishes a rule of non-liability for captured natural resources including groundwater, oil, gas, and game animals. The general rule is that the first person to "capture" such a resource owns that resource. For example, landowners who extract or “capture” groundwater, oil, or gas from a well that bottoms within the subsurface of their land acquire absolute ownership of the substance even if it is drained from the subsurface of another’s land. The landowner who captures the substance owes no duty of care to other landowners. For example, a water well owner may dry up wells owned by adjacent landowners without fear of liability unless the groundwater was withdrawn for malicious purposes, the groundwater was not put to a beneficial use without waste, or "such conduct is a proximate cause of the subsidence of the land of others." A corollary of that rule is that a person who drills for groundwater, oil, or gas may not extract the substance from a well that bottoms within the subsurface estate of another by drilling on a slant.

An ordinary watercourse is one of the two types of watercourse in statutory language in England and Wales. Ordinary watercourses include every river, stream, ditch, drain, cut, dyke, sluice, sewer and passage through which water flows and which does not form part of a main river. An internal drainage board where relevant, or lead local authority has permissive powers to carry out flood defence works for ordinary watercourses at their discretion.

An easement is a nonpossessory right to use and/or enter onto the real property of another without possessing it. It is "best typified in the right of way which one landowner, A, may enjoy over the land of another, B". An easement is a property right and type of incorporeal property in itself at common law in most jurisdictions.

A converted wetland is one that has been drained, dredged, filled, leveled, or otherwise altered for the production of an agricultural commodity. The definition is part of The Highly Erodible Land Conservation and Wetland Conservation Compliance provisions (Swampbuster) introduced in the 1985 Farm Bill. The provisions aim to reduce soil loss on erosion-prone lands and to protect wetlands for the multiple benefits they provide.

<i>Cline v. American Aggregates Corp.</i>

Cline v. American Aggregates Corporation, 474 N.E.2d 324, was a case decided by the Supreme Court of Ohio that first applied the reasonable use doctrine to water use in that state.

Water law in the United States refers to the Water resources law laws regulating water as a resource in the United States. Beyond issues common to all jurisdictions attempting to regulate water's uses, water law in the United States must contend with:

<span class="mw-page-title-main">Sudbrook (stream)</span> River in England

Sudbrook and its tributary, the Latchmere stream, are north-flowing streams in London, England, that drain northern Kingston upon Thames and the eastern extreme of Ham following a meander scar in a terrace; the upper part of the Sudbrook drains a narrow vale in Richmond Park's southern corner into the tidal Thames.

<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">Beverley and Barmston Drain</span> Drainage canal in East Riding of Yorkshire, England

The Beverley and Barmston Drain is the main feature of a land drainage scheme authorised in 1798 to the west of the River Hull in the East Riding of Yorkshire, England. The area consisted of salt marshes to the south and carrs to the north, fed with water from the higher wolds which lay to the north, and from inundation by tidal water passing up the river from the Humber. Some attempts to reduce the flooding by building embankments had been made by the fourteenth century, and windpumps appeared in the seventeenth century. The Holderness Drainage scheme, which protected the area to the east of the river, was completed in 1772, and attention was then given to resolving flooding of the carrs.

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.