By: Peggy Kirk Hall, Wednesday, August 08th, 2018

New law bulletin explains Ohio surface water drainage law

The drainage of surface water is undoubtedly important to agricultural landowners.  A question we often hear is whether someone can interfere with the surface water drainage on someone else’s property.  The answer to this question lies in Ohio’s “reasonable use doctrine,” which establishes guidelines for when a landowner has a legal right to affect the drainage of surface water onto another property.  Our new law bulletin, “Surface Water Drainage Rights,” explains this important legal doctrine.

Here is a quick summary of the bulletin:

  • A landowner does not have an absolute privilege to deal with surface water as he or she pleases but does have a legal right to alter the flow of surface waters from the property.
  • However, a landowner  has a legal duty of “reasonable use” when affecting surface water drainage and can be liable if a harmful interference with the flow of surface water is “unreasonable.”
  • To determine whether land uses and drainage interferences are “reasonable” or “unreasonable,” Ohio courts will examine four important factors:   the utility of the land use or drainage use, the gravity of harm caused to others, the practicality of avoiding the harm, and the fairness of requiring other landowners to bear harm from the drainage interference.
  • A harmed party can seek damages for injuries resulting from an “unreasonable” drainage interference.  Options for pursuing damages include hiring an agricultural attorney to send a “demand letter” or file a negligence claim or using the small claims court for damages that are $6,000 or less.
  • Another way to resolve a drainage interference is to work with the county Soil and Water Conservation District or county engineer’s office to develop a drainage improvement project.  Landowners may use the drainage petition process, which requires all landowners within the area benefitted by drainage improvement project to pay for the project through property assessments.

For a detailed explanation of drainage rights, read the full bulletin here.

 

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