DOCSLIB.ORG

Drainage Law Overview

Total Page：16

File Type：pdf, Size：1020Kb

Download full-text PDF Read full-text
Drainage Law Overview Overview of Drainage Law A Drainage Issues G E The Common Law as it Relates to Drainage: N Introduction to common law D Natural Watercourses Surface Water A Overriding the limitations of common law: Mutual Agreement Drains Petition (or municipal) drains Management of Municipal Drains Drainage Act Responsibilities Examples of Drainage Issues • Water from a higher property is directed onto a lower property • A natural watercourse is blocked by a beaver dam or debris, causing flooding. Property owner refuses to remove the dam. • One neighbour refuses to clean out a private ditch, resulting in flooding on another property. • Water from a road ditch spills onto a adjoining property Drainage Issues Who is responsible for resolving drainage issues? • Municipality? • Min. of Natural Resources & Forestry? • Conservation Authority? • Fisheries and Oceans Canada? • Min. of Agriculture, Food & Rural Affairs? Drainage ~ What’s the Law? Two Types of Law: Statute Law: • enacted by governments • covers specific topic • Examples: Municipal Act, Ontario Water Resources Act, Drainage Act & many more Common Law • Judge decisions on disputes • Future decisions guided by the precedence established in past decisions. Common Law applied to Drainage Court direction concerning: 1.Natural watercourses 2.Surface water Natural watercourse definition: – “Stream of water flowing in a defined channel with bed and bank for sufficient time to give substantial existence.” Is This A Natural Watercourse? 1. Natural Watercourses under Common Law Riparian landowners: • Own land that abuts a natural watercourse • Have certain rights and responsibilities that non-riparian landowners do not have. 1. Natural Watercourses under Common Law Riparian landowners: • Have the right of drainage • Have the right to use water for domestic purposes • If they dam a natural watercourse, they can be held liable for the impacts. • Must accept the water • If they modify/interfere with a channel, they can be held liable for the impacts Beaver dams? ~ Lynds vs. Runge (BC) ~ Natural Watercourses under Common Law • Landowner Lynds used land for potatoes and hay • Beavers regularly built dams at two locations on the downstream Runge property • From 1993-98, Lynds removed the dams without Runge’s permission • Relations deteriorated; Lynds was told to stay off the Runge land; • No control of beaver activity. • Flooding of agricultural land occurred and Lynds sued Runge for damages. ~ Lynds vs. Runge (BC) ~ Natural Watercourses under Common Law Court Decision: • Beaver dams are a natural occurrence on the watercourse: “… there is no present obligation upon a landowner in Canada to alter a watercourse from its present and longstanding state in order that an adjacent landowner may make use of lands that are subject to historical seasonal flooding.” • Lynds lost their case. ~ Ivall v. Aguiar 2007 ~ Natural Watercourses under Common Law – Natural stream meandered through the properties of both Ivall (higher land) and Aguiar (lower land). – Aguiar piped a section of the watercourse and added a pond – watercourse was modified. – Flooded the property of Ivall and negatively impacted their well – had to purchase water ~ Ivall v. Aguiar 2007 ~ Natural Watercourses under Common Law Court Decision: • Determined that the channel was a natural watercourse • Determined that Aguiar’s actions modified the natural watercourse • Determined that Aguiar’s actions resulted in damages to Ivall • Ordered damages totalling $29,600 and costs 2. Surface Water under Common Law: • Has no right of drainage • Flow of surface water is not grounds for a lawsuit • Lower owner does not have to accept the water; can protect their property (e.g. berms or dykes) 2. Surface Water under Common Law: • If collected/discharged, then grounds for lawsuit • Courts can order damages to be paid. • No right to drain into private ditches 2. Prescriptive Rights: • If surface water is collected and deposited on lower land uncontested for 20 years, it may acquire a “Prescriptive Right” • Only a judge can grant a prescriptive right of drainage. • A “prescriptive right” of drainage can be lost if there are changes in the flow of water (additional drainage) ~ McPhee v Plympton & Lambton ~ 1987 Surface Water under Common Law • McPhee property was prone to flooding but residence never flooded • County rebuilt road – road was raised 3 ft. and existing crossing was replaced with a smaller 24” culvert • Over 5” of rain fell in a short period of time; McPhee’s residence was flooded. • McPhee sued for damages ~ McPhee v Plympton & Lambton ~ 1987 Surface Water under Common Law Court decision: • “The owner of higher lands has no natural right to drain his surface water onto the lands of his neighbour, so that the owner of the lower land owes no servitude to the owner of upper lands in this respect. Further, the owner of lower lands may erect barriers to prevent the water from flowing onto his land.” • “The action of the county was not negligent. It did not have a duty to provide drainage facilities for surface water to the plaintiffs at common law.” ~ Derbecker vs. Lynch ~ Surface Water under Common Law • Upper owner Derbecker (farmer) had some tiles directed onto Lynch’s property (also a farmer) • Derbecker had additional drainage work performed and tiles were outletted 20 feet from property line • Caused erosion on Lynch property • Lynch did ditching to address problem on his property; Derbecker refused to contribute • Lynch blocked flow of water onto his land ~ Derbecker vs. Lynch ~ Surface Water under Common Law Court Decision: • Reviewed definition of “natural watercourses” and determined that this did not apply • Original drainage tiles had a “prescriptive right” • The added water did not have “prescriptive right” • The court ordered: – Derbecker to install tile across Lynch land – Lynch to remove blockage once tile installed – Derbecker to pay total damages of $6400. Resources: • Drainage e-Reference Tool www.omafra.gov.on.ca/english/landuse/drain-eref/index.htm • Case law: Canadian Legal Information Institute www.canlii.org/en/on/ • Top 10 Common Law Drainage Problems Between Rural Neighbours www.omafra.gov.on.ca/english/engineer/facts/98-015.htm Overriding the Drainage Act was passed Limitations of to provide property owners Common Law with a process to solve drainage problems. Two Methods: • Mutual Agreement Drains • Petition (or municipal) Drains Mutual Agreement Drains • Common for drains to be constructed by agreement • Common forms: – Verbal Agreement – Written Agreement • “Mutual Agreement” is a method authorized by Section 2 of the Drainage Act – Written agreement registered on land – Binding on the properties Petition Drains (aka Municipal Drains) Petition (or Municipal) Drains • All new drains must be initiated by Petition: • Petition is a legal document • Petitioners become financially responsible as soon as the petition is signed and submitted Validity of Petition • Inside the watershed is an internal “area requiring drainage” (ARD) • To be a valid petition, it must meet one of the following criteria: Signed by: – The majority of owners in the ARD – The owners that represent at least 60% of the ARD – The road authority, where the road needs drainage – The Director, where agricultural land is involved. Petition Submission To Council • Council considers petition – Council may reject a petition – Council may request an environmental appraisal or benefit/cost statement • Council does not decide if petition is valid. • Petition is circulated to CA’s & MNRF for comment (also include Fisheries & Oceans) • Agencies may request an environmental appraisal • Appointment of Engineer • Council appoints independent engineer (S.8) – Engineer must be fair and impartial (S.11) – Must represent the community of owners • Appointment by by-law or resolution (S.8) – Appointed engineer has right of entry onto private property (S.12) • Working with the engineer, the clerk sends notice of an “on-site meeting” On-Site Meeting Engineer’s Responsibilities: • Determine validity of petition • Determine the needs & concerns of property owners and agencies Preliminary Report • Council may instruct engineer to prepare a preliminary report • Optional, unless benefit/cost statement or an environmental appraisal has been requested • Allows different options & costs to be explored Meeting To Consider Preliminary Report: Two bodies make decisions at this meeting: 1) Owners – right to add or withdraw from petition • If the petition is no longer valid, original petitioners pay the costs incurred to date. 2) Council can decide not to proceed with the project based on the information in the report. • Petitioners can appeal to the Tribunal • If project stops, municipality pays the costs incurred to date. Final Report • Final Report must include: plans, profiles, specifications description of the area requiring drainage total cost estimate assessment schedule allowances other matters • Must consider individual property owner needs • Along with report, a key component of the engineer’s responsibilities is to obtain necessary permits/approvals Final Report In the final report, the engineer must: • Establish benchmarks (S.13) • Continue the drain to a sufficient outlet (S.15) • Provide for disposal of material (S.16) • Provide for road crossings (S.17) • Provide for private crossings (S.18) • Establish a working space (S.63) Field Survey Survey would: Identify drainage features Record soil details Record tile outlets Record other features e.g. fences, pipelines Opportunity
Load more

Recommended publications
  • Ohio Drainage Law the City of Wadsworth Receives Frequent Calls from Landowners About Drainage Issues
    Ohio Drainage Law The City of Wadsworth receives frequent calls from landowners about drainage issues. The Ohio Laws that govern water rights and drainage can be very complex and be found in statutory and common law. Please note that the City of Wadsworth cannot give you any legal advice about your particular rights and would recommend that you seek private counsel to fully advise you thereto. If there is a dispute where the parties cannot work together to solve the problem, the Court of Common Pleas would have the jurisdiction over the issues. These cases can be difficult and expensive. Typically both parties end up ahead by working together to solve the problem. General Considerations with Ohio Drainage Law The Ohio Drainage Laws generally address drainage rights and runoff issues. The “reasonable use doctrine” frequently applied by the Ohio Supreme Court permits broad latitude in the interpretation of individual rights as they pertain to drainage. It states “A possessor of land is not unqualifiedly privileged to deal with surface water as he pleases, nor is he absolutely prohibited from interfering with the natural flow of surface waters to the detriment of others. Each possessor is legally privileged to make a reasonable use of his/her land, even though the flow of surface waters is altered thereby and causes some harm to others. He incurs liability only when his harmful interference with flow of the surface water is unreasonable.” See McGlashan v. Spade Rockledge Terrace Condo Dev. Corp., 62 Ohio St. 2d 55, 402 N.E.2d 1196. The laws are not easily summarized.
    [Show full text]
  • Indiana Drainage Law
    INDIANA DRAINAGE LAW Title 36 Article 9 Chapter 27 IC 36-9-27 Chapter 27. Drainage Law IC 36-9-27-1 Application of chapter Sec. 1. This chapter applies to all counties. However, sections 6, 7, 9, 10, 30, 31, and 32 of this chapter do not apply to a county having a consolidated city. As added by Acts 1981, P.L.309, SEC.101. IC 36-9-27-2 Definitions Sec. 2. As used in this chapter: "Affected land" means land within a watershed that is affected by the construction, reconstruction, or maintenance of a regulated drain. "Board" refers to the drainage board of a county. "Crossing" means a drainage structure that passes over, under, or through a location used for the passage of people, livestock, or vehicles. "Dam" means a dam or other structure and its appurtenances that impounds a small lake at the lake's outlet. "Maintenance" means work on a drain as described in section 34(c) of this chapter for any of the purposes stated in that section. "Mutual drain" means a drain that: (1) is located on two (2) or more tracts of land that are under different ownership; (2) was established by the mutual consent of all the owners; and (3) was not established under or made subject to any drainage statute. "Open drain" means a natural or artificial open channel that: (1) carries surplus water; and (2) was established under or made subject to any drainage statute. "Owner" refers to the owner of any interest in land. "Private drain" means a drain that: (1) is located on land owned by one (1) person or by two (2) or more persons jointly; and (2) was not established under or made subject to any drainage statute.
    [Show full text]
  • Stormwater Management Why and What Is Stormwater Management?
    Stormwater Management Why and What is Stormwater Management? • Implementaon of structural and non-structural measures to manage problems and prevent new problems • Protecng life and lessening public health and safety risks • Reducing monetary damage to private and public property • Protecng quality of surface and ground water • Minimizing disrupon of community affairs Stormwater Management Relaonship to Sustainability • Water is limited resource – Arid environment – Reduced water supplies • Water quality impacts to downstream water bodies (beaches, streams, lakes) • Groundwater recharge from rainfall – Quality and quanty • Wildlife and riparian corridors • Impacts to stability of natural creeks / rivers with increased erosion Convenonal Approaches to Stormwater Management Floodplain Management Stormwater Management Conveyance Oriented Storage Oriented Legal Aspects of Drainage Design Drainage Law - General • Legal aspects of drainage design are just as important principles as the engineering and must be aware of the general doctrines • Engineer must be must be aware of lawsuits for “negligence in design” or failure to perform in accordance with “industry standards” Drainage Law - General • Drainage law based varies widely between states and based on case law • Generally based on three doctrines: 1. Common Enemy Doctrine 2. Civil Law Rule or Natural Flow Rule 3. Rule of Reasonable • Disnguishes between “surface waters” and “water course” California Drainage Law An upper landowner is entled to discharge surface water from his land as the water naturally flows. If he modifies the natural flow, he is liable for any damage done to a lower landowner unless the lower landowner had acted “unreasonably” in altering the natural drainage over his land. The determinaon of reasonable or unreasonable is a queson of fact to be determined by the court in each case Keys v.
    [Show full text]
  • A REVIEW of SOUTH DAKOTA DRAINAGE LAW (Revised 2005)
    A REVIEW OF SOUTH DAKOTA DRAINAGE LAW (Revised 2005) Natural Resources Division Office of Attorney General Telephone: (605) 773-3215 100 copies of this book were printed by the Office of Attorney General at a cost of $____ per copy. TABLE OF CONTENTS Page TABLE OF DRAINAGE CASES .............................. iii INTRODUCTION ......................................... 1 I. CASE LAW ........................................ 2 II. STATUTORY PROVISIONS ............................ 23 A. SDCL 46A-10A-20 ............................ 24 B. DRAINAGE PLANNING .......................... 25 1. Procedure for adopting plan ........... 26 2. Amending a plan ....................... 28 3. Effect of a plan ...................... 28 C. COORDINATED DRAINAGE AREAS ................. 30 1. Purpose of a coordinated area ......... 30 2. Creating a coordinated area ........... 31 a. By county action ................. 31 b. By landowner petition ............ 31 D. DRAINAGE PROJECTS .......................... 33 1. Landowner petitions ................... 34 2. Hearing on petition ................... 35 3. Determining project damages ........... 36 4. County construction powers ............ 38 5. Construction contracts ................ 39 6. Maintenance, repair, and improvements . 40 7. Petitions for maintenance and repair .. 42 8. Establishing a drainage project ....... 42 E. ASSESSMENTS ................................ 43 1. What is an assessment ................. 43 2. Equalizing benefits ................... 46 3. Notice of assessment .................. 47 4.
    [Show full text]
  • Minnesota's Major Environmental Laws 1971 - 1995
    This document is made available electronically by the Minnesota Legislative Reference Library as part of an ongoing digital archiving project. http://www.leg.state.mn.us/lrl/lrl.asp A Guide to 25 Years of Minnesota's Major Environmental Laws 1971 - 1995 Earth Day 1970- 1995 . Research Department · Minnesota House of Representatives • 600 State Office Building, St. Paul, MN 55155 ; (612) 296-6753 This report was prepared by JOHN K. HELLAND, Legislative Analyst, in the House Research Department. Questions may be directed to John at (612) 296-5039. Copies of this report may be obtained by calling 296-6753. LILA LOEBERTMAN provided secretarial support. This publication can be made available in alternative formats upon request. Please call KARIN JOHNSON, (612) 296-5038 (voice); (612) 296-9896 or 1-800-657-3550 (TDD). lE~UW~ [I] 1 {\ f\l 0 "1 :Oflh •w·ll"'~'!'\1"1\1,r>C LIBRAR'lf Contents . SrATE CAPITOL ,· ::\ rr. f'ld:IL; MN. ~tilli~ Page Introduction Major State Environmental Laws 1971-1995 . 2 Major State Environmental Laws by Subject . 76 Organizational Charts for the Main Environmental Agencies . 84 Section in Minnesota Revised Statutes Covering the Four Main Environmental Agencies . 88 Environmental Statutes under Other Agencies . 89 Major Federal Environmental Laws . 91 State and Legislative Environmental Entities . 92 Introduction This guide to Minnesota's major environmental laws, from Earth Day 1970 through the 1995 legislative session, is subjective at best. The term "environmental" includes natural resources and is used in its broadest sense. It does not, however, include laws relating to zoos or major energy laws enacted in the late 1970s and early 1980s.
    [Show full text]
  • Minnesota Drainage Law Analysis and Evaluation
    Old Republic Title Building 400 South Second Avenue, Suite 1200 Minneapolis, MN 55401 (612) 344-1400 tel (612) 344-1550 fax www.smithpartners.com www.waterlaws.com MINNESOTA DRAINAGE LAW ANALYSIS AND EVALUATION FINAL REPORT Louis N. Smith Charles B. Holtman August 15, 2011 With technical assistance from: Dr. Steve Taff Department of Applied Economics University of Minnesota Funding for this project was provided by the Minnesota Environment and Natural Resources Trust Fund as recommended by the Legislative-Citizen Commission on Minnesota Resources (LCCMR). MINNESOTA DRAINAGE LAW ANALYSIS AND EVALUATION TABLE OF CONTENTS I. INTRODUCTION AND OVERVIEW ………………………….. 2 II. LEGAL REVIEW ………………………………………………….. 5 III. CRITICAL ISSUES ……………………………….……………….. 14 IV. DEMONSTRATION SCENARIOS …………………...…………. 22 V. RECOMMENDATIONS ……………………………….…………... 53 APPENDICES A. Draft Legislation for Recommendations ………………………………….. 60 B. Scenario A – Technical Information - Houston Engineering …………… 83 C. Scenario B – Technical Information – I & S Group ………………………. 88 D. Dr. Steve Taff Economic Analysis …………………………………………. 96 E. Study Advisory Committee Information ………………………………….... 109 Funding for this project was provided by the Minnesota Environment and Natural Resources Trust Fund as recommended by the Legislative-Citizen Commission on Minnesota Resources (LCCMR). 1 MINNESOTA DRAINAGE LAW ANALYSIS AND EVALUATION I. INTRODUCTION AND OVERVIEW The glacial landscape of Minnesota is the land of 10,000 lakes, a few more wetlands, and a good deal of high groundwater. The state’s past and continuing prosperity would not be possible without the ability to make productive use of land by drainage. Roads, settlements, agriculture all have relied, and will continue to rely, extensively on the ability to manage surface and groundwaters through systems of ditch and tile. But we also have come to appreciate more with time the benefits of protecting our wet environments, the places where ground and surface waters meet.
    [Show full text]
  • Chapter 2 Legal Aspects
    CHAPTER 2 LEGAL ASPECTS Legal Aspects 2-1 Chapter Table of Contents 2.1 Introduction .................................................................................................................... 2-3 2.2 Oregon Drainage Law ................................................................................................... 2-3 2.3 Common Drainage Complaints .................................................................................... 2-4 2.3.1 Diversion .............................................................................................................. 2-5 2.3.2 Collection and Concentration .............................................................................. 2-5 2.3.3 Augmentation ....................................................................................................... 2-6 2.3.4 Obstruction ........................................................................................................... 2-6 2.3.5 Erosion and Sedimentation .................................................................................. 2-7 2.3.6 Groundwater Interference .................................................................................... 2-7 2.4 National Flood Insurance Program .............................................................................. 2-8 2.4.1 Flood Insurance Studies and Floodways.............................................................. 2-8 2.4.2 NFIP Maps ........................................................................................................... 2-9 2.4.3
    [Show full text]
  • Water Rights Laws
    Law Notes From the OSU Agricultural & Resource Law Program By Peggy Kirk Hall The Ohio State University, Columbus, Ohio Understanding Water Rights in Ohio – Part I Legal conflicts over water are on the rise in Ohio. As a water-rich state, much of Ohio’s water law historically has focused on the right to rid one’s property of water. Drainage issues and lawsuits are frequent. But disputes over the right to own and use water have become more common in recent years, and we are fielding more and more questions about rights to water. In a series of articles, we’ll provide an overview of water rights law in Ohio – including both the right to drain and the right to own and use water. A number of conflicts around the state have centered on underground water and private property rights—does the property owner have a property right in the water beneath the land? As early as 1861, Ohio recognized a right of ownership in the groundwater beneath one’s property. But the law allowed any property owner to have absolute ownership over all of the groundwater he or she could use, and provided no legal remedy if that use interfered with another property owner’s water rights. It took over one hundred years for this law of ―absolute ownership‖ to change. The Ohio Supreme Court revised the law in 1984 when it adopted the law of ―reasonable use‖. The new law reiterated the right to use the water beneath one’s land, but placed a duty on landowners to make a ―reasonable use‖ of water and created a remedy for a landowner whose water rights were impaired by an ―unreasonable use‖ of water by another property owner.
    [Show full text]
  • Inverse Condemnation and the Law of Waters
    Inverse Condemnation and the Law of Waters DANIEL R. MANDELKER School of Law, Washington University, St. Louis, Mo. This paper deals with research on recent trends of legislation and court decisions pertaining to actions of inverse condemnation and relates them specifically to factual situations involving land damage due to interference with or rearrangement of drainage. Rules of liability between adjacent private owners for damage due to interference with the flow of surface water or disruption of percolating water can be traced back into the common law. In the present era of highway construction, courts have tried to apply this body of private law to drainage claims against public agencies. Results have not always been successful as attested to by recent efforts to clarify and codify in statute law the legal responsibilities of public agencies in regard to drainage damage, and by the continued existence of uncertainty in doctrines de­ veloped through judicial decisions on inverse condemnation claims . Analysis of these trends suggests that the police power dimension to this problem has not been fully explored or appre­ ciated either by legislatures or courts, and that strong reasons exist for assigning a greater role to this concept in the develop­ ment of inverse condemnation doctrine for claims against public highway agencies . •MODERN HIGHWAY CONSTRUCTION is massive, and in spite of the most careful attention to elements of design the construction of a new highway may alter existing drainage patterns. A property owner in the vicinity of the highway may then suspect, at the time of condemnation, that he will be flooded out, water-soaked, or injured in some other way because he may have reason to know that the highway will alter existing drainage patterns.
    [Show full text]
  • Illinois Drainage Law
    Illinois Drainage Law Including Soil Erosion and Sedimentation Control, Permit Requirements for Construction in Streams or Floodways, and Federal Wetlands Provisions By D. L. Uchtmann and Bernard Gehris College of Agricultural, Consumer and Environmental Sciences University of Illinois at Urbana-Champaign Cooperative Extension Service • Circular 1355 The authors would like to acknowledge the assistance of attorneys Mary Perlstein, Champaign, Illinois, and David Rolf, Springfield, Illinois, for their assistance with the 1991 circular on this topic. The authors would also like to ac- knowledge the valuable assistance of Gene Barickman, state biologist, Natural Resources Conservation Service, regard- ing the discussion of wetlands. Cover photo: A well-maintained drainage ditch. Edited by Peggy Currid and Pam Johnson Designed by Krista L. Sunderland Formatted by Oneda VanDyke Urbana, Illinois December 1997 Issued in furtherance of Cooperative Extension Work, Acts of May 8 and June 30, 1914, in cooperation with the U.S. Department of Agriculture, Dennis R. Campion, Interim Director, Cooperative Extension Service, University of Illinois at Urbana-Champaign. The Illinois Cooperative Extension Service provides equal opportunities in programs and employment. 2M—12-97—UI Printing Division—PC Printed on recycled paper. Illinois Drainage Law Including Soil Erosion and Sedimentation Control, Permit Requirements for Construction in Streams or Floodways, and Federal Wetlands Provisions This circular was written by Donald L. Uchtmann, professor of agricultural law and Extension specialist, and by Bernard Gehris, research assistant in agricultural law. College of Agricultural, Consumer and Environmental Sciences University of Illinois at Urbana-Champaign Cooperative Extension Service • Circular 1355 I Contents Preface .................................................................................... v Part I. Illinois Rules of Drainage .......................................
    [Show full text]
  • Reconnecting Property Rights to Watersheds
    William & Mary Environmental Law and Policy Review Volume 25 (2000-2001) Issue 1 Symposium: Water Rights and Watershed Management: Planning for the Article 4 Future October 2000 Reconnecting Property Rights to Watersheds A. Dan Tarlock Follow this and additional works at: https://scholarship.law.wm.edu/wmelpr Part of the Environmental Policy Commons, and the Water Law Commons Repository Citation A. Dan Tarlock, Reconnecting Property Rights to Watersheds, 25 Wm. & Mary Envtl. L. & Pol'y Rev. 69 (2000), https://scholarship.law.wm.edu/wmelpr/vol25/iss1/4 Copyright c 2000 by the authors. This article is brought to you by the William & Mary Law School Scholarship Repository. https://scholarship.law.wm.edu/wmelpr RECONNECTING PROPERTY RIGHTS TO WATERSHEDS A. DAN TARLOCK* I. INTRODUCTION: THE REEMERGENCE OF HYDROLOGICAL GOVERNANCE This article examines the extent to which common law property rights' use watershed resources to promote watershed conservation. The modest thesis of the article is that for over two centuries, land and water law has functioned to detach property rights from specific landscapes and, thus, has contributed to landscape degradation. There is a need to redefine both land and water rights to include a landscape conservation component because property rights are entitlements that both represent exclusive and2 semi-exclusive abstract relationships and are specific in time and place. It will be constitutionally easier to redefine water rights compared to land rights3 because the former has always been defined in relation to the hydrologic integrity of the larger stream system.4 The current Supreme Professor of Law, Chicago-Kent College of Law. Visiting Professor of Law, University of Hawaii, Spring, 2001.
    [Show full text]
  • Drainage Law One of the Realities of Living in Iowa Is Our Abundant Rainfall Making It Possible for Us to Farm and Produce Crops
    Chapter Five – Drainage Law One of the realities of living in Iowa is our abundant rainfall making it possible for us to farm and produce crops. But anyone who owns land knows that too much (or too little) water can pose a problem. Questions about what landowners can do to drain the water from their land – and how those actions might impact neighboring landowners who live downhill – provide a rich and varied body of legal issues collectively known as drainage law. This chapter considers the basic laws on drainage and focuses on what Iowa landowners should know about the topic. I own a farm and am having problems with a neighbor concerning the amount of water coming off his land across my fields and the damage it is doing. I have complained but he said I don’t have any legal right to stop the rain! It is true, you may not be able to stop the rain, but Iowa law does establish a set of rules to apply when drainage disputes arise between neighboring landowners, as they often do. The rules are fairly straightforward and easy to understand, but the Iowa courts have resolved dozens of disputes applying and refining the rules. Here are some of the key drainage principles to understand. First, running water is a fact of life and nature - after it rains water is going to be pulled by gravity and run downhill collecting in lower areas. The places where water collects and drains may be watercourses or ditches and eventually they will drain into a river, stream or lake.
    [Show full text]