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.
Drainage law 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.
In the state of Michigan,
drainage law is so important that counties
elect a drain commissioner to oversee water resources.
The 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. 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.
The 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.
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 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?
Drainage law in the United Kingdom
In the United Kingdom the Land Drainage Act 1991 decrees
drainage of land in England and Wales,however this 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.
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