Drainage law is a specific area of
water law related to
drainage
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 (anaerobic condition ...
of
surface water
Surface water is water located on top of land forming terrestrial (inland) waterbodies, and may also be referred to as ''blue water'', opposed to the seawater and waterbodies like the ocean.
The vast majority of surface water is produced by pre ...
on
real property
In English common law, real property, real estate, immovable property or, solely in the US and Canada, realty, is land which is the property of some person and all structures (also called improvements or fixtures) integrated with or aff ...
. It is particularly important in areas where
freshwater
Fresh water or freshwater is any naturally occurring liquid or frozen water containing low concentrations of dissolved salts and other total dissolved solids. Although the term specifically excludes seawater and brackish water, it does incl ...
is scarce,
flooding
A flood is an overflow of water ( or rarely other fluids) that submerges land that is usually dry. In the sense of "flowing water", the word may also be applied to the inflow of the tide. Floods are an area of study of the discipline hydrolog ...
is common, or water is in high demand for
agricultural
Agriculture or farming is the practice of cultivating plants and livestock. Agriculture was the key development in the rise of sedentary human civilization, whereby farming of domesticated species created food surpluses that enabled peopl ...
or
commercial
Commercial may refer to:
* a dose of advertising conveyed through media (such as - for example - radio or television)
** Radio advertisement
** Television advertisement
* (adjective for:) commerce, a system of voluntary exchange of products and s ...
purposes.
In the United States
In the
United States
The United States of America (U.S.A. or USA), commonly known as the United States (U.S. or US) or America, is a country Continental United States, primarily located in North America. It consists of 50 U.S. state, states, a Washington, D.C., ...
, regulation of drainage is typically done on the
state
State may refer to:
Arts, entertainment, and media Literature
* ''State Magazine'', a monthly magazine published by the U.S. Department of State
* ''The State'' (newspaper), a daily newspaper in Columbia, South Carolina, United States
* ''Our S ...
and
local level. In addition to whatever
statute
A statute is a formal written enactment of a legislative authority that governs the legal entities of a city, state, or country by way of consent. Typically, statutes command or prohibit something, or declare policy. Statutes are rules made by ...
s or
local ordinance
A local ordinance is a law issued by a local government. such as a municipality, county, parish, prefecture, or the like.
China
In Hong Kong, all laws enacted by the territory's Legislative Council remain to be known as ''Ordinances'' () a ...
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 () is a state in the Great Lakes region of the upper Midwestern United States. With a population of nearly 10.12 million and an area of nearly , Michigan is the 10th-largest state by population, the 11th-largest by area, and t ...
, drainage law is so important that
counties
A county is a geographic region of a country used for administrative or other purposesChambers Dictionary, L. Brookes (ed.), 2005, Chambers Harrap Publishers Ltd, Edinburgh in certain modern nations. The term is derived from the Old French ...
elect a
drain commissioner to oversee water resources.
Common enemy doctrine
The common enemy doctrine is a rule derived from
English
English usually refers to:
* English language
* English people
English may also refer to:
Peoples, culture, and language
* ''English'', an adjective for something of, from, or related to England
** English national ...
common law
In law, common law (also known as judicial precedent, judge-made law, or case law) is the body of law created by judges and similar quasi-judicial tribunals by virtue of being stated in written opinions."The common law is not a brooding omniprese ...
. 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
Dyke (UK) or dike (US) may refer to:
General uses
* Dyke (slang), a slang word meaning "lesbian"
* Dike (geology), a subvertical sheet-like intrusion of magma or sediment
* Dike (mythology), ''Dikē'', the Greek goddess of moral justice
* Dikes ...
or
drainage channels
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 (anaerobic condition ...
) 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
A cause of action or right of action, in law, is a set of facts sufficient to justify suing to obtain money or property, or to justify the enforcement of a legal right against another party. The term also refers to the legal theory upon which a ...
unless the diversion is malicious.
[ BarBri Real Property Outline 2004, p. 145] 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
France (), officially the French Republic ( ), is a country primarily located in Western Europe. It also comprises of Overseas France, overseas regions and territories in the Americas and the Atlantic Ocean, Atlantic, Pacific Ocean, Pac ...
and
Spain
, image_flag = Bandera de España.svg
, image_coat = Escudo de España (mazonado).svg
, national_motto = '' Plus ultra'' (Latin)(English: "Further Beyond")
, national_anthem = (English: "Royal March")
, ...
) 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
Improvement is the process of a thing moving from one state to a state considered to be better, usually through some action intended to bring about that better state. The concept of improvement is important to governments and businesses, as well a ...
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.
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:
# 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?
In the United Kingdom
In the
United Kingdom
The United Kingdom of Great Britain and Northern Ireland, commonly known as the United Kingdom (UK) or Britain, is a country in Europe, off the north-western coast of the continental mainland. It comprises England, Scotland, Wales and ...
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.
See also
*
Land Drainage Act
*
Best management practice for water pollution
Best management practices (BMPs) 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 an ...
*
New Jersey stormwater management rules The 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 bas ...
*
United States groundwater law
United States groundwater law is that area of United States law related to groundwater.
Groundwater can either be privately owned or publicly owned. Groundwater owned by the State is usually distributed through an appropriation system. Privatel ...
*
Water politics
Further reading
*"Sewers and drains".
Halsbury's Laws of England
''Halsbury's Laws of England'' is a uniquely comprehensive encyclopaedia of law, and provides the only complete narrative statement of law in England and Wales. It has an alphabetised title scheme covering all areas of law, drawing on authoriti ...
. First Edition. Volume 25.
*G G Kennedy and J S Sandars. The Law of Land Drainage & Sewers. Waterlow Bros & Layton. London. 1884
HathiTrust*The Drainage Acts, Ontario. A Poole. Toronto. 1908
HathiTrust*Garner's Law of Sewers and Drains. Ninth Edition. Shaw & Sons. 2004
Google Books*John Francis Garner. The Law of Sewers and Drains: Under the Public Health Acts. Shaw. 1950
Google Books*Humphry William Woolrych. A Treatise on the Law of Waters, and of Sewers. Sauders and Benning. Fleet Street, London. 1830
Google Books
*Humphry William Woolrych. A Treatise of the Law of Sewers, including the Drainage Acts. Second Edition. 1849. Third Edition. 1864
HathiTrust*The Laws of Sewers. Printed by E and R Nutt and R Gosling at the Lamb without Temple Bar. 1726
Google Books*William John Broderip. The Reading of the Famous and Learned Robert Callis Esq Upon the Statute of Sewers. Fourth Edition. Joseph Butterworth and Son. 1824
Google Books*Clarke's Bibliotheca Legum. Chapter 19 (Law of Sewers)
Page 323
References
External links
from the Connecticut State Law Library
Section 400 of the Hydrologic Criteria and Drainage Design Manualfrom the
Clark County Regional Flood Control District, which provides an extensive discussion of drainage law in
Nevada
Nevada ( ; ) is a U.S. state, state in the Western United States, Western region of the United States. It is bordered by Oregon to the northwest, Idaho to the northeast, California to the west, Arizona to the southeast, and Utah to the east. N ...
.
The Iowa Drainage Law Manual from the Center for Transportation Research and Education at
Iowa State University
Iowa State University of Science and Technology (Iowa State University, Iowa State, or ISU) is a public land-grant research university in Ames, Iowa. Founded in 1858 as the Iowa Agricultural College and Model Farm, Iowa State became one of th ...
*Articles o
flood damage litigationan
from
University of Missouri at RollaBibliography on Water Resources and International Law from the
Peace Palace
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, image_size =
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, image_caption = The Peace Palace, The Hague
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