 |
The examples and perspective in this article deal primarily with the United States and do not represent a worldwide view of the subject. You may improve this article, discuss the issue on the talk page, or create a new article, as appropriate. (December 2010) (Learn how and when to remove this message)
|
| Part of a series on |
| Environmental law |
|---|
 |
| Pollution control law |
| Natural resources law |
| Reference materials |
| Related topics |
|
|
|
Drainage law is a specific area of water law related to drainageofsurface wateronreal property. It is particularly important in areas where freshwater is scarce, flooding is common, or water is in high demand for agriculturalorcommercial purposes.
In the United States, regulation of drainage is typically done on the state and local level. In addition to whatever statutesorlocal ordinances may be in effect in a given locality, there are three basic legal doctrines which the various state courts recognize.[1]
In the state of Michigan, drainage law is so important that counties elect a drain commissioner to oversee water resources.
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 dikesordrainage 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 barrelsordams) as well, and lower landowners will not have a cause of action unless the diversion is malicious.[2] 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 (so named because it is derived from the civil law systemsofFrance 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 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.[2]
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:
In the United Kingdom 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.[3]
