Drainage law
Encyclopedia
Drainage law is a specific area of water law
related to drainage
of surface water
on real property
. It is of great importance in areas where freshwater
is scarce, where flooding is common, or where water is in high demand for agricultural
or commercial
purposes.
, regulation of drainage is typically done on the state
and local
level. In addition to whatever statute
s or local ordinance
s may be in effect in a given locality, there are three basic legal doctrines which the various state courts recognize.
In the state of Michigan
, drainage law is so important that counties elect a drain commissioner
to oversee water resources.
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 dam
s) as well, and lower landowners will not have a cause of action
unless the diversion is malicious. 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.
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.
Because the reasonable use rule presents a subjective standard, courts will often employ a balancing test
to determine whether a landowner is liable to his neighbors for his alteration of drainage. For example, under the Restatement of Torts, the test was:
Water law
Water 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, but has also become influenced by environmental law...
related to drainage
Drainage
Drainage is the natural or artificial removal of surface and sub-surface water from an area. Many agricultural soils need drainage to improve production or to manage water supplies.-Early history:...
of surface water
Surface water
Surface water is water collecting on the ground or in a stream, river, lake, wetland, or ocean; it is related to water collecting as groundwater or atmospheric water....
on real property
Real property
In English Common Law, real property, real estate, realty, or immovable property is any subset of land that has been legally defined and the improvements to it made by human efforts: any buildings, machinery, wells, dams, ponds, mines, canals, roads, various property rights, and so forth...
. It is of great importance in areas where freshwater
Freshwater
Fresh water is naturally occurring water on the Earth's surface in ice sheets, ice caps, glaciers, bogs, ponds, lakes, rivers and streams, and underground as groundwater in aquifers and underground streams. Fresh water is generally characterized by having low concentrations of dissolved salts and...
is scarce, where flooding is common, or where water is in high demand for agricultural
Agriculture
Agriculture is the cultivation of animals, plants, fungi and other life forms for food, fiber, and other products used to sustain life. Agriculture was the key implement in the rise of sedentary human civilization, whereby farming of domesticated species created food surpluses that nurtured the...
or commercial
Commerce
While business refers to the value-creating activities of an organization for profit, commerce means the whole system of an economy that constitutes an environment for business. The system includes legal, economic, political, social, cultural, and technological systems that are in operation in any...
purposes.
Drainage law in the United States
In the United StatesUnited States
The United States of America is a federal constitutional republic comprising fifty states and a federal district...
, regulation of drainage is typically done on the state
U.S. state
A U.S. state is any one of the 50 federated states of the United States of America that share sovereignty with the federal government. Because of this shared sovereignty, an American is a citizen both of the federal entity and of his or her state of domicile. Four states use the official title of...
and local
Local government in the United States
Local government in the United States is generally structured in accordance with the laws of the various individual states. Typically each state has at least two separate tiers: counties and municipalities. Some states have their counties divided into townships...
level. In addition to whatever statute
Statute
A statute is a formal written enactment of a legislative authority that governs a state, city, or county. Typically, statutes command or prohibit something, or declare policy. The word is often used to distinguish law made by legislative bodies from case law, decided by courts, and regulations...
s or local ordinance
Local ordinance
A local ordinance is a law usually found in a municipal code.-United States:In the United States, these laws are enforced locally in addition to state law and federal law.-Japan:...
s may be in effect in a given locality, there are three basic legal doctrines which the various state courts recognize.
In the state of Michigan
Michigan
Michigan is a U.S. state located in the Great Lakes Region of the United States of America. The name Michigan is the French form of the Ojibwa word mishigamaa, meaning "large water" or "large lake"....
, drainage law is so important that counties elect a drain commissioner
Drain commissioner
A drain commissioner is an elected official in counties of the U.S. state of Michigan with a population over 12,000. In counties with a population under 12,000, the statutory duties and responsibilities of the drain commissioner are performed by the county's board of road commissioners.The office...
to oversee water resources.
The Common Enemy Doctrine
The common enemy doctrine is a rule derived from EnglishEnglish law
English law is the legal system of England and Wales, and is the basis of common law legal systems used in most Commonwealth countries and the United States except Louisiana...
common law
Common law
Common law is law developed by judges through decisions of courts and similar tribunals rather than through legislative statutes or executive branch action...
. 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
Ditch
A ditch is usually defined as a small to moderate depression created to channel water.In Anglo-Saxon, the word dïc already existed and was pronounced 'deek' in northern England and 'deetch' in the south. The origins of the word lie in digging a trench and forming the upcast soil into a bank...
) 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 dam
Dam
A dam is a barrier that impounds water or underground streams. Dams generally serve the primary purpose of retaining water, while other structures such as floodgates or levees are used to manage or prevent water flow into specific land regions. Hydropower and pumped-storage hydroelectricity are...
s) as well, and lower landowners will not have a cause of action
Cause of action
In the law, a cause of action is a set of facts sufficient to justify a right to sue to obtain money, property, or the enforcement of a right against another party. The term also refers to the legal theory upon which a plaintiff brings suit...
unless the diversion is malicious. This rule is followed by approximately half the U.S. states, although some states have modified the doctrine to hold landowners liable for negligent
Negligence
Negligence is a failure to exercise the care that a reasonably prudent person would exercise in like circumstances. The area of tort law known as negligence involves harm caused by carelessness, not intentional harm.According to Jay M...
damage to the parcels belonging to neighboring landowners.
The Civil Law Rule
The civil law rule (so named because it is derived from the civil law systemsCivil law (legal system)
Civil law is a legal system inspired by Roman law and whose primary feature is that laws are codified into collections, as compared to common law systems that gives great precedential weight to common law on the principle that it is unfair to treat similar facts differently on different...
of France
France
The French Republic , The French Republic , The French Republic , (commonly known as France , is a unitary semi-presidential republic in Western Europe with several overseas territories and islands located on other continents and in the Indian, Pacific, and Atlantic oceans. Metropolitan France...
and Spain
Spain
Spain , officially the Kingdom of Spain languages]] under the European Charter for Regional or Minority Languages. In each of these, Spain's official name is as follows:;;;;;;), is a country and member state of the European Union located in southwestern Europe on the Iberian Peninsula...
) 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.
The 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.Because the reasonable use rule presents a subjective standard, courts will often employ a balancing test
Balancing test
A balancing test is any judicial test in which the jurists weigh the importance of multiple factors in a legal case. Proponents of such tests argue that they allow a deeper consideration of complex issues than a bright line rule can allow...
to determine whether a landowner is liable to his neighbors for his alteration of drainage. For example, under the Restatement of Torts, the test was:
- Was there reasonable necessity for the property owner to alter the drainage to make use of their land?
- Was the alteration done in a reasonable manner?
- Does the utility of the actor’s conduct reasonably outweigh the gravity of harm to others?
See also
- Best management practice for water pollutionBest management practice for water pollutionBest Management Practices is a term used in the United States and Canada to describe a type of water pollution control. Historically the term has referred to auxiliary pollution controls in the fields of industrial wastewater control and municipal sewage control, while in stormwater management ...
- New Jersey stormwater management rulesNew Jersey stormwater management rulesThe New Jersey stormwater management rules were organized in 1983 and updated in 2004. The rules restrict building within 300-foot of "high quality water"; and stormwater and parking lot runoff at new developments must be diverted to a retention basin or a detention basin that are used for...
- United States groundwater law
- Water politicsWater politicsWater politics, sometimes called hydropolitics, is politics affected by the availability of water and water resources, a necessity for all life forms and human development...
External links
- Discussion of Connecticut surface water law from the Connecticut State Law Library
- Section 400 of the Hydrologic Criteria and Drainage Design Manual from the Clark County Regional Flood Control DistrictClark County Regional Flood Control DistrictThe Clark County Regional Flood Control District was created in 1985 by the Nevada Legislature allowing Clark County to provide broad solutions to flooding problems...
, which provides an extensive discussion of drainage law in NevadaNevadaNevada is a state in the western, mountain west, and southwestern regions of the United States. With an area of and a population of about 2.7 million, it is the 7th-largest and 35th-most populous state. Over two-thirds of Nevada's people live in the Las Vegas metropolitan area, which contains its...
. - The Iowa Drainage Law Manual, from the Center for Transportation Research and Education at Iowa State UniversityIowa State UniversityIowa State University of Science and Technology, more commonly known as Iowa State University , is a public land-grant and space-grant research university located in Ames, Iowa, United States. Iowa State has produced astronauts, scientists, and Nobel and Pulitzer Prize winners, along with a host of...
- Articles on flood damage litigation and "reasonable care" in surface water law from University of Missouri at Rolla
- Bibliography on Water Resources and International Law, from the Peace PalacePeace PalaceThe Peace Palace is a building situated in The Hague, Netherlands. It is often called the seat of international law because it houses the International Court of Justice , the Permanent Court of Arbitration, the Hague Academy of International Law, and the extensive Peace Palace Library.In addition...
Library