Drainage law is a specific area of

water law Water is an inorganic compound with the chemical formula . It is a transparent, tasteless, odorless, and nearly colorless chemical substance. It is the main constituent of Earth's hydrosphere and the fluids of all known living organisms ( ...

related to drainage of surface water on

real property In English common law, real property, real estate, immovable property or, solely in the US and Canada, realty, refers to parcels of land and any associated structures which are the property of a person. For a structure (also called an Land i ...

. 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. The term excludes seawater and brackish water, but it does include non-salty mi ...

is scarce, flooding is common, or water is in high demand for

agricultural Agriculture encompasses crop and livestock production, aquaculture, and forestry for food and non-food products. Agriculture was a key factor in the rise of sedentary human civilization, whereby farming of domesticated species created f ...

or commercial purposes.

In the United States

In the

United States The United States of America (USA), also known as the United States (U.S.) or America, is a country primarily located in North America. It is a federal republic of 50 U.S. state, states and a federal capital district, Washington, D.C. The 48 ...

, regulation of drainage is typically done on the state and

local Local may refer to: Geography and transportation * Local (train), a train serving local traffic demand * Local, Missouri, a community in the United States Arts, entertainment, and media * ''Local'' (comics), a limited series comic book by Bria ...

level. In addition to whatever

statute A statute is a law or formal written enactment of a legislature. Statutes typically declare, command or prohibit something. Statutes are distinguished from court law and unwritten law (also known as common law) in that they are the expressed wil ...

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. Hong Kong In Hong Kong, all laws enacted by the territory's Legislative Council remain to be known as ''Ordinances'' () ...

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 most counties still elect a drain commissioner to regulate drainage of surface water.

Common enemy doctrine

The common enemy doctrine is a rule derived from English

common law Common law (also known as judicial precedent, judge-made law, or case law) is the body of law primarily developed through judicial decisions rather than statutes. Although common law may incorporate certain statutes, it is largely based on prece ...

. It holds that because surface water is a "common enemy" of 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. BarBri Real Property Outline 2004, p. 145 This rule is followed by approximately half of the U.S. states, although some states have modified the doctrine to hold landowners liable for negligent damage to parcels of 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 located primarily in Western Europe. Overseas France, Its overseas regions and territories include French Guiana in South America, Saint Pierre and Miquelon in the Atlantic Ocean#North Atlan ...

and

Spain Spain, or the Kingdom of Spain, is a country in Southern Europe, Southern and Western Europe with territories in North Africa. Featuring the Punta de Tarifa, southernmost point of continental Europe, it is the largest country in Southern Eur ...

, is effectively the opposite of the common enemy doctrine. It holds that the owner of a parcel of lower land must accept the natural drainage from higher parcels and cannot alter the drainage pattern of his own land to increase the drainage flow onto lower parcels. For this reason the rule is sometimes referred to as the "natural flow rule". Application of the civil law rule in its purest form would inhibit development of land because virtually every improvement on a parcel alters natural drainage. For this reason this rule has been modified in those jurisdictions that use it in order 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 when the alteration causes "unreasonable" harm of 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 Restatement may refer to: *Restatements of the Law, published by the American Law Institute as scholarly refinements of black letter law; these include: **Restatement of Contracts, Second, completed by the American Law Institute in 1979 *Restatemen ...

, 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 Northwestern Europe, off the coast of European mainland, the continental mainland. It comprises England, Scotlan ...

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.

References

External links

from the Connecticut State Law Library
Section 400 of the Hydrologic Criteria and Drainage Design Manual
from the Clark County Regional Flood Control District, which provides an extensive discussion of drainage law in

Nevada Nevada ( ; ) is a landlocked state in the Western United States. It borders Oregon to the northwest, Idaho to the northeast, California to the west, Arizona to the southeast, and Utah to the east. Nevada is the seventh-most extensive, th ...

.
The Iowa Drainage Law Manual
from the Center for Transportation Research and Education at Iowa State University *Articles o
flood damage litigation
an

from University of Missouri at Rolla
Bibliography on Water Resources and International Law
from the Peace Palace Library {{DEFAULTSORT:Drainage Law Water law Drainage Land management Land law