FMH XVIII 324 ESO iOtQ AGDEX 817/557

Paul L. Wright Extension Economist, Agricultural Law Dept. of Agricultural Economics and Rural Sociology Ohio State University Ohio Cooperative Extension Service

TITLE: WATER RIGHTS IN OHIO The laws governing water rights In Ohio are Water rights In Ohio and In most eastern quite complex and broad In scope; they attempt to states are determined by case law, some of which adjust the competing demands of various Indlvl~ Is very old. The standards appl led to determine dual s and entitles as fairly and as reasonably as the lawful use of water In Ohio depend upon the possible* Water rights affect farmers as well as source of the water. the general public, and the use of water by one may adversely affect the other. The two most There are 4 sources of water which have been Important topics associated with the law of water defined by Ohio case law, and each Is a separate rights are the right to use water and drainage body of law. The 4 classifications are: I aw.

1* surface streams which flow In permanent, Water rights are Important In Ohio since the well-defined channels; supply of water seldom matches the need for ft* The yearly rainfall In Ohio Is often sporadic, It 2. surface waters, however originating, Is not uncommon to have periods of excessive rain- which pass over the land without any fall and flooding followed by weeks of little or dIstInet channel; no ralnfal 1«

3. underground streams; and Experts estimate that 49,000 acres were ready to be Irrigated by Ohio landowners In 1980 In the 4. underground or percolating water. event of dry weather; this was an Increase of 3,000 acres from 1979* These estimates are based 1. Streams on purchases of Irrigation equipment each year* The Supreme Court of Ohio In East Bay The disposal of excess water Involves econo- Sporting Club v Miller, 118 Ohio St 360, defined a mic as well as environmental considerations. M natural strean as A stream of water flowing In a Drainage Improvements are necessary on nearly 60% definite channel having a bed and sides or banks of Ohio's cropland* It Is estimated that 60 and discharging Itself Into some other stream or mil lion feet of tile was Installed In 1980 alone, body of water. The flow need not be constant, but and that approximately 80,000 acres of tile Is It must be more than surface drainage; there must Installed each year In Ohio. be substantial Indications of the existence of a stream, which Is ordinarily a moving body of Right to Use water*11 This definition could Include rivers and even lakes or ponds If they flow Into or feed The laws governing water rights In Ohio are another body of water. quite complex and broad In scope; they attempt to adjust the competing demands of various Indivi- The riparian rights or civil law doctrine Is duals and entitles as fairly and as reasonably as the basic stream law In Ohio* Under this doctrine possible. Water rights affect farmers as well as the right to use stream water Is part of the the general public, and the use of water by one ownership of the land through which the stream may adversely affect the other. passes* A person owning land along a stream may take whatever quantity of water he/she needs for 3. Underground Streams domestic use, but other uses must be reasonable. Underground streams, clearly defined, and Thus, a landowner may take any amount of known to exist are governed by the same standards water necessary for drinking, cooking, bathing and as surface streams. Thus, the riparian rights other domestic uses, but commercial uses of water doctrine applies, allowing unlimited use for must be reasonable. A reasonable use may become domestic purposes and requiring a reasonable use unreasonable due to changes In circumstances such for other purposes* as the weather or the development of new water needs by downstream owners. A landowner does not Th e probI em arIses I n estab11shIng that an own the water Itself, rather he/she has the right underground stream exists, as opposed to water to Its use and Is required to return the water to merely percolating under the ground* An the channel when It leaves his/her lands* Water underground stream has the same characteristics as Is not to be diverted Into another watershed* an aboveground stream (defined previously). This can be Important since the use of underground It Is apparent that upstream landowners have water (percolating water) Is treated by the law advantages. A downstream landowner who questions much differently than stream water. the reasonableness of upstream use, however, may file suit to determine the Issue. This Is the 4* Underground Water only means available to determine the specific rights In exact terms, but few such cases have Underground water Is presumed to be per- bet-n brought to court. If It Is found that the colating unless It Is proved that an underground upstream use Is In fact unreasonable, the court stream exists* This seldom happens, therefore, may enjoin (stop or decrease) such use* the rule governing underground w< ter Is usually appl I cable* 2. Diffused Surface Water Percolating water has been defined as subsur- Surface water refers to water diffusing over face waters which without any permanent, distinct the ground and derived from falling rain and or definite channel, percolate In small veins and melting snow. It continues to be such until It ooze or filter from the lands of one owner onto reaches a wel l~def Ined channel and flows with those of another. Subsurface waters which flow In ottier waters where It becomes the running water of channels are also treated as percolating If the a stream. Water which Is collected In a swamp or courses are unknown or una seer tain able. a pond Is also classified as surface water If there Is no apparent outlet Into a watercourse. In Ohio, and In most states, the common law I f the pond feeds a watercourse, however, the theory of absolute ownership applies with little riparian doctrine of stream water applies* or no modification* Ibis means that a landowner may lawful ly remove whatever amount of water (s)he There are few cases dealing with the use of can pump from his/her land, short of malice* surface water. The rule which as been applied to surface water In Ohio Is the rule of absolute The rule of absolute ownership can have harsh ownership which means that diffused surface water effects on neighboring landowners* For example. may be taken and used freely by the landowner to If a landowner pumps water from his land, lowering the exclusion of any lower property owner* the water table and causing his neighbors' welts to go dry, such neighbors would have no recourse Surface water belongs to the owner who cap- unless they could prove malice* In other words, tures It and retains It ond ha/she may divert tt It must be proved that the water was pumped with for any use, domestic or commercial, regardless of the Intent to harm other*. the consequences to neighbors* The reasonable use rule which Is applied to the commercial use of It (s wise to do some Investigating before stream water does not apply to surface water. digging a wel I to be sure of an adequate supply of water* A permit must be pbtafned from your local health department before drilling any well which will supply water for human consumption In a pri- This has led the courts to apply a new rule vate system* Such permits are usually obtained by which provides flexibility and practicality to the driller of the well. drainage law; this Is called the "reasonable use1* doctr Ine. The following chart demonstrates the four classifications of water and the rules which apply The reasonable use doctrine states that a to determine the lawful use of water In each landowner Is not unqualifiedly privileged to deal c lassl f leaf Ion* with surface water as he/she sees fit, nor Is he/she absolutely prohibited from Interfering with Drainage Laws the natural flow of surface waters to the detri- ment of others. A possessor of land Is legally The right to remove excess water Is economi- privileged to make a reasonable use of his/her cally more important to most Ohio landowners than I and even though the flow of water Is altered, the right to use water, especially In the spring thereby causing harm to others* Liability Is and during other periods of heavy rainfall* Ohio Incurred only when the harmful Interference with drainage law applies to both surface drainage and the flow of surface water Is unreasonable*!: to tile Installed In the ground. The reasonableness of the use Is determined Landowners should acquaint themselves with by weighing the gravity of the harm with the uti- Ohio's drainage laws since when a dispute arises l Ity of the upper landowner's conduct* Several concerning drainage, the only ways to get the factors go Into this balance* The gravity of harm matter settled are through negotiation or a court Involves: the extent and character of the harm, the social value that the law attaches to the property Invaded, the character of the locality, Ohio courts have adopted two opposing and the burden on the person harmed of avoiding doctrines In resolving disputes concerning the the harm. The utility of conduct Includes: the disposal of excess water. The first Is the com- social value attached to the conduct, the sultabl- mon eneny doctrine which gives a landowner the I Ity of the conduct to the nature of the local Ity, unqualified right to dispose of water as he/she and the practicality of avoiding the Invasion on sees fit without regard to the consequences to the other landowner. Stated more simply, the adjoining landowners. Gontrarlly, the civil law reasonableness of the use In a case must be deter- rule requires the lower landowner to accept the mined as a question of fact under all of the natural water flow, but prevents the upper attendant circumstances* It Is apparent that the landowner from doing anything to change the outcome resulting from this balance of harm and natural drainage and thus Increase the burden on utility may not be cut and dried, thus, It seems the lower landowner. that the reasonable use doctrine has added fair-* ness as well as some uncertainty to drainage law. The states which neighbor Ohio have chosen to apply one doctrine or the other* Ohio, however, In one case, a development corporation began uses both doctrines; the civil law rule has been to clear and grade land In a city for the applied to rural areas while the common enemy construction of conoomfnlurns. Heavy rains doctrine has been adopted for urban areas* It Is Increased the runoff from the cleared land, logical that the common enemy doctrine should carrying mud, rocks and other debris and flooding govern urban areas since It Is reasonable to the basements of lower landowners. The Ohio expect the residents of a city to change the Supreme Court applied the reasonable use rule and natural drainage because of the great amount of found the development corporation liable to the building, grading and construction which occurs* lower landowners for damages* The court weighed the foreseeabl I Ity of the mudslides and the It becomes apparent that the strict appl Ica- flooding as well as the gravity of the harm tion of either rule would be unjust In some cases against the utility of the development and the and effectively stifle land development In others* practicalIty of providing for adequate drainage Therefore, courts have adopted modifications and prior to clearing and grading*!: exceptions to both rules to reach similar results regardless of which rule Is applied* Much of the legal controversy concerning The court also found that a prescriptive drainage arises when damage Is caused by a water- easement was created since the tile had been In course overflowing onto the lower I an dowers' pro- place for over 21 years* A prescriptive easement perty* The majority of Ohio cases hold that the Is a right to use another's property which Is not upper landowner Is not liable If the overflow Is Inconsistent with the owner's rights and which Is fran a natural watercourse. Liability has been acquired by a use tiat Is open, notorious, Incurred, however, when waNr was collected by adverse, and continuous for the statutory period artificial drainage (such as tile) and discharged (21 years in Ohio). It is similar to adverse Into a water course In excess quantities even If possession* The owner >f an easement is not per- the ootfon was reasonable* However, It would seem mitted to Increase th«- usage of the easement, that the more modern reasonable use rule would however* require an examination of the reasonableness of tne conduct and a balancing of the relevant fac- Another example of when drainage controver- tors as discussed previously* sies arise Is when a landowner backs water up onto neighboring property* Cue Ohio case Involved the In 19t>4, the Ohio Supreme Cburt, using a situation where a lower landowner diverted the modified civil law rule, held that upland owners natural flow of surface water by raising the level ma/ place flowing surface waters In a natural of his property and building structures thereon* watercourse at any rate desired, so long as no The court applied a modified common enemy rule additional waters from outside the watershed are holding that as long as the lower landowner acted included In such flow*!: The decision was In a reasonable manner, he would not be liable for modified, however, In 19/b by a case Involving the damages when the water backed up onto another installation of city storm sewers which Increased person's propertyJL the flow and acceleration of a natural stream causing four parcels of land to flood with greater In many cases where drainage law was frequency. The Ohio Supreme Court stated that I nvol ved, the courts have stated that mere acce- tnfb action resulted In a taking of property by leratlon of the flow of water Is not actionable, omilent domain and ordered the city to compensate but acceleration combined with diversion of the the landowners since the damage was f low I s actionable^ foreseeable*!: Since the city was a public body, tne law of eminent domain applied. Eminent domain According to Ohio Jurisprudence, a landowner giveb a state or a city the power to take private may erect a dam to direct the water from a stream property for public use, but the United States to any point on his/her land If the water is Constitution limits the power to taking for a returned to Its natural channel* However, the public purpose and prohibits the exercise of the owner of a dam on a stream Is liable for damages power without just compensation to the owners of caused to other property owners along the stream the property which Is taken* by the ordinary and expected floods of the season*

Drainage law also oxnes Into the picture when In one case a tower landowner was deprived of subsurface drains that were constructed by mutual the natural flow of the stream when an upper lan- agreement need maintenance or recon-struetIon* downer erected a dam* The court granted an The problem Is Illustrated by the case where an Injunction stating that the dam amounted to an upper property owner wanted to replace 5 Inch tile unreasonable use of the water because the dam was with 6 Inch tile* The 5 Inch tile crossed 250 built to provide the upper landowner with a pond feet of a lower property owner's land* There was which was used for recreational purposes* The no recorded easement and the original tile line Increase In the evaporation of water was con- had been In place for over 50 years* The Ohio sidered In determining whether the use of the Court of Appeals refused to allow the tile to be water was reasonable*!. enlarged because there was no showing that the enlargement would be a public benefit* The upper One Ohio case Involved the erection of a dam landowner did have the right, however, to repair by a lower landowner to protect his property from and to maintain the present size (5 Inch), at the a back up of water when a city built drains that location where ft crossed the neighbor's Increased the burden of water on the lower land* p roper ty«2: The court- held that the building of the dam could The Improvements possible under the state not be enjoined. statutes by mutual agreement or through the peti- tion procedure include: The cour hs considering the Issue of dams have reached many different results* it seems that * The location, construction, reconstruc- when the common enemy rule was applied, lower lan- tion, reconditioning, widening, downer* were generally entitled to protect them- straightening, alternating, boxing, selves against water flowing from upper lands, at tiling, filling, walling, arching, or any least whore the upper landowner was not unne- change In the course, location or terminus cessarily damaged. of any ditch, drain, watercourse or f loodway. The application of the civil rule, however, often prohibits the construction of a dam by a * The deepening, widening, straightening, or lower I and own tar since the lower owner Is required any change In the course, location, or to accept tne natural flow of water from upper terminus of a river, creek, or run* lands. Dams have also been held to constitute a nuisance by some courts* * A levee, or any wall, embankment, jetty, dike, dam, sluice, revetment, reservoir, An Ohio Statute states that no dam over ten holding basin, control gate, breakwater, feet In height may be constructed In a water or other structure for the protection of course for the purpose of storing, conserving or lands from any stream, lake, or pond, or retarding water or for any other purpose unless for the protection of any outlet, or for the person or governmental agency desiring such the storage or control of water. The construction has a construction permit for such removal of obstructions such as silt bars, dom Issued by the chief of the division of log Jams, debris, and drift from any water JH/ ditch, drain, watercourse, floodway, river, creek, or run. tt Is apparent from the foregoing that the present state of the law In Ohio regarding * The vacating of a ditch or drain* drainage and surface water rights Is decidedly unclear. The Inflexible common enemy and civil Improvements may be planned, financed, and law doctrines are difficult to apply to varying constructed using the petition procedure or the circumstances. The result has been a trend toward mutual agreement procedure* In either case per- the adoption of a reasonable use approach, but the manent maintenance Is provided. rules applied to these cases and the results reached may vary according to jurisdiction. The area affected by an Improvement may include all or a part of one or more counties* Drainage Improvements Basic Steps of the Ohio Drainage Law Petition The removal of excess water can be a source Procedure.107 of dispute among landowners, and Ohio courts have developed complex legal doctrines to settle 1. A petition Is filed by a landowner or a drainage controversies. Unfortunately, the pro- public body with the clerk of the board cess of settling such issues In court Is costly of county commissioners* and time consuming, and sometimes the results reached are not satisfactory to the parties* 2* A $750 bond Is filed with the petition and paid by the person filing the peti- Some of these drainage problems can be solved tion* by Individual landowners on their own property, but others may require the work of two or more 3« The proposed Improvement is viewed by the 1 andowners to provide an adequate drainage outlet* county conmfssloners, the rounty engineer Thus, owners may by mutual agreement cooperate to and other Interested people. provide drainage improvements or rely on the peti- tion procedure set forth In state statutes* 4. The first hearing Is held* The county acts or omissions of any owner, the can- engineer files his preliminary reports miss loners may add to the maintenance and his opinion about the feasibility of assessment to rectify the damage*,! 1. the project. Any affected land owner may also offer evidence for or against the By following these steps two or more neigh- proposal. The petition will either be boring landowners can join together and decide granted or dismissed. what kind of drainage Improvement would benefit than the most In their particular situation* If a t>. If the petition Is granted the county drainage Improvanent Is constructed by mutual engineer makes surveys, plans and speci- agreunent a petition Is filed in the home county fications for the Improvements; prepares of the landowners and the proposal Is reviewed by a schedule of assessments of benefits and the board of county commissioners. The Improve- damages and files this Information with ment Is constructed and maintained by funds the commissioners. obtained from the benefiting landowners*

6. The final hearing Is held whereby the Summary canm I ss loners consider all of the evl- d ence of fered, 1ncIudIng scheduIes and This article has dealt with three topics reports of the county engineer. After covered by Ohio water law: the right to use the hearing the petition will either be water, drainage law and drainage Improvements. granted or dismissed. (If the petition lb dismissed all costs may be assessed to The lawful right to use water Is determined the benefiting landowners or paid out of by t.ie classification of the water source which county funds. The petitioners may appeal Includes: surface stream, surface waters, the dismissal to the court of common underground streams and percolating water* pleas by posting i $500 bond* If the petition Is granted, opposing parties may Use of strean water Is governed by the at so appeal) . riparian rights doctrine. This doctrine states that an owner of land bordering a stream may use 7. If the petition Is granted, the county any amount of water for domestic purposes but Is engineer will let the contracts for limited to a reasonable quantity for all other construction and receive bids at the time uses* fixed If no appeal has been taken to the court. Uses of water which are considered to be reasonable vary by Jurisdiction, therefore, It Is 8. Upon completion of the contract the Important to do some Investigating before using assessments are adjusted pro rata from water for commercial purposes especially If neigh- the estimated to the final cost. These boring landowners could be affected* assessments plus estimated maintenance costs for one year are levied on each Lower landowners have the right to receive parcel of land. stream water from higher lands substantially undl- mlnlshed In quantity and uncorrupted In quality* 9. The Improvement Is maintained by the The Ohio Supreme Court held as early as 1831 that county with funds obtained by an annual surface streams are the gift of Province for the assessment upon the benefited landowners. benefit of all lands through which they flow*

10* The commissioners wll I review and update Uses of surface water and percolating water the assessment schedule every 6 years* are governed by the absolute ownership doctrine* Any owner may apply for a reduction In This means that such water, belongs to the lan- his/her maintenance assessment due to downer who captures and retains It and that he/she work h«/sha proposes oo a public ditch. may divert It for any use, cjomestfc or commercial, regardless of the consequences to neighbors. 11* If cleaning or repair of an Improvement b ecomes necessary due to the negI)gent Water Is used so routinely that It Is taken Footnotes for granted, thus, the laws governing water use In Ohio are often misunderstood or overlooked comple- I/ MeGI ashen v Spade Ftockl edge Corp. (1980). tely. The right to use water will become Increasingly Important, however, as commercial 2/ McGI ashen v Spade Rockledge Corp. (1980). uses Increase and Irrigated acres continue to expand* 2/ Munn v torvltz (1964).

logal controversies In Ohio arise when 4/ Ntosley v Loraln (1976). excess water Is drained from the land. This Is because of spring rainfalls and other periods of J5/ WI Iklns v Sltterley. heavy rain which predominate the Eastern part of the nation- 6/ Lunsford v Stewart (1953).

Early Ohio courts adopted two doctrines to 7/ Ohio Jurisprudence. settle drainage disputes. The common enemy doctrine was applied to urban area cases, giving 8/ Klstler v Watson (19 5). landowners the unqualified right to dispose of excess water. The civil law rule applied to rural 9/ ORC § 1521.06 areas and prevented the uppur landowners from Increasing the burden on the lower landowner by 107 Ohio Revised Code 5 6131 changing the natural drainage* 11/ ORC $ 6137.10 The trend In Ohio today Is for the courts to av:>Id applying either doctrine In a pure sense, rather to apply the reasonable use rule In drainage law cases* This rule Is being utilized since It Is flexible, and softens the harsh effects of the common enemy and civil law rules. The reasonable use rule Involves a balancing by References the court of al I of the Important factors In I Ight of the circumstances of each case. It Is Impor- Byron Nolte tant to note, however, that the law Is clearly Charles C. Callahan, Principles of Water Rights- unsettled In the area of drainage disputes; the Law In Chlo, In cooperation with the Ohio standards applied and the results reached may vary Department of Natural R&sources Division of by jurisdiction and the facts add circumstances of Water. each case. Al I educational programs and activities conducted Ohio has provided by statute for a method by the Ohio Cooperative Extension Service are whereby landowners may agree on drainage Improve*- available to all potential clientele on a nondls- ments and implement them through the Ohio drainage criminatory basis without regard to race, color, law petition procedure. This procedure Is admi- national origin, sex or religious affiliation. nistered by the board of commissioners In each Issued In furtherance of Cooperative Extensive county to provide for the better utilization of Work, acts of May 8 and June 30, 1914, In coopera- Ohio's soil and water resources. tion with the U.S. Department of ^rlculture. Cooperative Extension Service, The laws which govern water rights In Ohio "Die Ohio State University. are complex and uncertain In many areas. It Is 1/33 wise In many Instances to consult a qualified attorney before using water commercially or constructing a drainage Improvement, especially If neighbors will be affected.