Wednesday, December 19, 2018

Drainage Issues – Rules For Handling Excess Surface Water


For agriculture, drainage of surface water is a significant legal issue. When surface water is sufficient, problems can arise concerning disposal of rainfall and/or melting snow which water-logs valuable fields and pastures forming bogs and sinkholes, thereby making cultivation difficult or impossible. The drainage of excess surface water can create disputes among rural landowners.  While it’s an issue that arises more frequently in the areas of the U.S. that are east of the Missouri River, it sometimes comes up in the more arid parts of the country.  When too much surface water is present, how can it be disposed of without creating legal problems with an adjoining property owner? 

The rules governing the disposal of excess surface water – that’s the topic of today’s post

General Rule

In general, it has historically been wrongful for a landowner to disturb the existing pattern of drainage and thereby obstruct the flow of water from another's lands, or cast upon the lands of another more water than would naturally flow thereupon, or cause an usually high concentration of water in the course of drainage.  While that’s the general rule, there are exceptions.  Indeed, at least three different legal theories may be utilized to resolve surface water drainage conflicts.

The rule of absolute ownership. The rule of absolute ownership, also known as the common enemy rule, is the oldest legal theory applicable to the use of surface water. This rule is based upon the theory that surface water is the enemy of every landowner and a property owner is given complete freedom to discharge surface waters regardless of the harm that might result to others. The owner is allowed to dispose of surface water in any manner that will result in the highest benefit to his or her land. In its original form, the common-enemy doctrine encouraged land development, but also encouraged conflict both between and among landowners.

Today, most courts have modified this rule by importing into it qualifications based on concepts of reasonable use, negligence, and/or nuisance to prohibit discharges of large quantities of water onto adjoining land by artificial means in a concentrated flow, except through natural drainways.  For example, in Currens v. Sleek, 138 Wash. 2d 858, 983 P.2d 626 (1999), the court determined that a landowner has an unqualified right to make lawful improvements on their own land, but those improvements must limit the harm caused by changes in the flow of surface water to that which is reasonably necessary.  See also Johnson v. Philips, 433 S.E.2d 895 (S.C. Ct. App. 1993).  If land clearing activities alter the surface drainage significantly, it may give an adjoining landowner the basis to bring a nuisance suit.  For example, in Lucas v. Rawl Family Partnership, 359 S.C. 505, 598 S.E.2d 712 (2004), the evidence showed that after the neighbors cleared their land, the owner's fields flooded in every heavy rain, making it unsuitable for crops. The court held that there was a jury question presented as to whether the neighbors' actions constituted a nuisance per se and were dangerous to the property at all times.  Similarly, in Mullins v. Greer, 26 Va. 587, 311 S.E.2d 110 (1984), a landowner had constructed an embankment causing excess water to flow onto a neighbor.  The landowner claimed that the embankment was properly constructed and didn’t interfere with the natural channel and flow of a stream.  The court ordered the landowner to remove the embankment. 

The civil law rule.  The civil law rule imposes liability upon one who interferes with the natural flow of surface water and, as a result, invades another's interest in land. This rule is the opposite of the common enemy rule, and is phrased in terms of dominant and servient estates. This rule imposes a servitude upon the lower or servient estate which requires that it receive all waters which flow in the course of nature from the higher or dominant tract. The owner of the dominant tract cannot, however, do anything that would increase the natural drainage burden imposed upon the lower estate.  But, the complaining party must prove that they incurred damage.      For example, in Mullen v. Natural Gas Line Company of America L.L.C., 801 N.W.2d 627 (Iowa Ct. App. 2011), the plaintiff failed to prove that the defendant’s drainage activity increased the quantity of water or changed the manner of discharge onto the plaintiff’s property.  As a result, the plaintiff was denied injunctive relief and damages.

Essentially, the civil law rule involves accepting the natural flow of water. While this rule minimizes conflict between and among landowners, it also discourages land improvement. As a result, some states have modified the civil law rule to accommodate artificial changes in the natural flow of surface water if the change is incidental to the normal use and improvement of land. These changes are most likely to be acceptable when the water empties into an existing natural watercourse. However, substantial changes in natural drainage flows resulting in damages to an adjoining landowner are not permissible. This rule applies even in connection with governmentally approved soil conservation practices that substantially alter the natural flow of surface water.  For example, in O’Tool v. Hathaway, 461, N.W.2d 161 (Iowa 1990), a farmer constructed several conservation terraces as part of his soil and water conservation plan for the farm.  One of the terraces broke during a heavy rainfall and the resulting flow of the previously ponded water in the terrace damaged the basement of neighboring homeowners.  The homeowners sued, alleging liability because the flow of the water from the terrace break had altered the natural flow of water from the dominant to the servient estate.  The trial court agreed and awarded them damages for materials to fix their basement.  The appellate court tacked on labor expenses, finding that the farmer was liable under the "natural flow" doctrine because the farmer had substantially changed the water drainage method.  The appellate court found that the farmer was negligent in constructing a terrace in a location that if it broke, the resulting water flow would cause foreseeable damages to the homeowners. 

The strict application of the civil law rule has also been modified by a so-called “husbandry” exception, and interference with natural drainage will be allowed if the interference is limited to that which is incidental to reasonable development of the dominant estate for agricultural purposes.  See, e.g., Callahan v. Rickey, 93 Ill. App. 3d 916, 418 N.E.2d 167 (1981).

Reasonable Use Rule. Today, many jurisdictions have adopted the rule of reasonable use which attempts to avoid the rigidities of either the civil-law or common-enemy doctrines. Instead, the reasonable use rule determines the rights of the parties by an assessment of all the relevant factors with respect to interference with the drainage of surface waters. Under the reasonable use rule, a landowner is entitled to make a reasonable use of diffused surface water, with such use being a factual question for a juryFor example, in Kral v. Boesch, 557 N.W.2d 597 (Minn. Ct. App. 1996), a landowner created a channel to drain surface water from his property to a tile intake bordering the parties' properties by lowering the intake in order to allow the channel water to flow into it.  The neighbor discovered what the landowner had done and raised the intake to keep the water out and plugged it with cement, which caused surface water to stand in three areas of the landowner’s property and damaged the landowner’s crops.  The trial court determined that the granted injunctive relief to the landowner under the reasonable use rule.  On appellate court affirmed.  It was appropriate for the landowner to drain water into the adjoining owner’s tile drainage system. 

Ultimately, in legal disputes over the application of the reasonable use rule, it’s often up to a jury.  The jury must determine whether the benefit to the actor's land outweighs the harm that results from the alteration of the flow of surface water onto neighboring lands. A landowner will be liable for damages only to the extent that interference with the flow of surface water is unreasonable. Whether a landowner has acted reasonably in removing excess surface water depends upon such things as the degree or extent of harm, the foreseeability of damage, and the amount of care that was exercised to prevent damage. Is the drainage reasonably necessary?  Did the party draining the excess water take reasonable care to avoid unnecessary damage to a neighbor’s property?  Is the benefit from diverting the excess water greater than the harm to the neighbor?  Does the draining improve the “normal and natural” system of drainage?  These are all important questions to ask before diverting excess water on to a neighbor.  These are often the questions a jury will weigh.

Drainage codes.  Many states have adopted statutory drainage codes.  Under those codes, a  landowner  can  institute  drainage  proceedings for the construction, repair or improvement of agricultural drainage ditches.  These codes, if they apply in a particular situation, must be complied with.


Excess surface water can be can be diverted and discharged onto a neighbor.  However, care must be taken in doing so.

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