drainage

Sixty-six undergraduate students just completed our Agribusiness Law class in the College of Food, Agricultural, and Environmental Sciences at OSU yesterday. It’s always a challenge to teach students all I want them to know about agricultural law in the short time I have with them. And it always generates excitement and relief when I can see that they have learned.
In one assignment this semester, students had to consider the property laws we studied and devise three “real life” questions about the laws. Next, they had to write the answers to the questions they drafted. The legal accuracy of their answers is important, of course, and illustrates their comprehension of the laws we studied. But selecting and writing the questions is equally important, as students must predict when and how the law would apply in a “real world” situation they might encounter.
Many of the student works showed that learning had certainly taken place this semester. And some of their questions were so insightful and relevant that they should also be useful in the “real world.” Below are excellent questions and answers from four students. They illustrate what the students learned, but they will likely be helpful for our readers, too. Take a look at what our students are asking and answering about agricultural property laws!
Question 1 comes from Katie Anderholm, a senior from Medina, Ohio majoring in Agribusiness and Applied Economics.
Q: Am I at risk to be sued from my new neighbors who keep complaining about my cows?
A: A farmer is not as risk to be sued, or at least rightfully sued, by their new neighbors because of the Ohio Revised Code 929.04 and 3767.13. Both codes, the Right to Farm defense to civil action for nuisance and Ohio’s “Statutory Nuisance” Law, protect farmers and their operations from complaints regarding farming. The farmer’s neighbors who have been complaining about his cows do not have a strong argument for legal action because the agricultural activities were established before they moved adjacent to the farm. If the farmer is following proper animal care and manure handling and the neighbors moved after the farming began, then the neighbors will not have merit for a civil action. I would advise the farmer to have a conversation with the neighbors to ease tensions and explain that they knowingly moved next to a cattle operation and that there are certain things that come with that. I have learned that people who are not involved in agriculture in their everyday life to not understand the fundamentals, and sometimes education and consideration can go a long way.
Question 2 is from Cori Lee, a senior from Marysville, Ohio, graduating this May with a major in Sustainable Plant Systems Agronomy and a minor in Agribusiness.
Q: Two siblings own ground that was passed on to them by their parents, where one farms, and the other one has no interest in farming. Can one sibling sell the land, even if the other one does not want to? What can be done to prevent losing the ground?
Yes, as co-owners, one sibling can sell their share of the land, even if the other sibling disagrees and is actively using the land for income and farming. This would force the other sibling to either also sell their share of the land or buy the other sibling out. This is explained in Section 5307.01 of the Ohio Revised Code, the partition law. Whether it is considered a “Tenancy in Common” or “Survivorship Tenancy”, they are both subject to partition. The partition process is also explained in Chapter 5307, and is often lengthy and can ultimately result in both owners being forced to sell the land. However, placing the land in an LLC can prevent this situation, as it would remove partition rights completely and the LLC would be treated as the sole owner of the land. This also provides other opportunities to have more control over how the land could be sold and allow terms to be set to buy out other LLC members. In order to avoid a scenario like this, landowners should carefully plan the transition of their estate to avoid any costly mistakes for the next generation.
Question 3 is by Kole Vollrath, a senior from South Charleston, Ohio majoring in Construction Systems Management.
Q: I own a field and the state has contacted me seeking eminent domain for a roadway that they are planning to build cutting directly through my field. I am new to this sort of action and I am wondering what the proper actions will be in this case?
A: Ohio Revised Code Chapter 163 is the eminent domain law that contains the four required procedures the taking entity (the state in this situation) must provide to the landowner. The first is the notice which you have already received, followed by a “just compensation” offer for the land in question, then appraisal of the property, and then finally a hearing in court to decide on or stop the taking if you don't agree to the offer. In the situation of a road as in this case, it is hard to stop the taking, so the fourth option will likely be more about getting fair money out of the deal rather than stopping construction completely. The reason that it will be hard to stop a road construction is because of Ohio Constitution Article 1 Section 19. This explains that eminent domain is allowed to happen when it is for a valid public use of the property, and since this is a road, it will be hard to argue that is not valid. However, it can still be beneficial to the landowner to hold strong in steps 2 and 3 and get an appraisal, then go to court and try to extract fair money for yourself out of the situation.
Question 4 is from Lyndie Williams, a senior from Bucyrus, Ohio majoring in Agribusiness and Applied Economics.
Q: Can I be held accountable for damage to a neighbor’s property that they claim is due to water drainage from my property?
A: In short, yes it is possible to be held accountable for damage to a neighbor’s property if it was caused by water drainage from your property, but not always. While every property owner has the right to reasonably use their land, including water flow and drainage, there can be consequences of this if harm is caused to others. First, determining what is “reasonable” for water drainage when evaluating harm to another is necessary. Courts will look at four factors when determining reasonable drainage: utility of the use, gravity of the harm, practicality of avoiding the harm, and justice. If your purpose for drainage is valid, the harm caused by drainage use is not overly detrimental to others, it is impractical to use an alternative form of drainage, and it is not unfair to require other landowners to bear losses caused by your drainage, then you would not likely be held accountable for damage to their property due to water drainage from your property. However, if some or all of these “reasonable” requirements are not met, then you would need to look into drainage problem resolutions, as you could be accountable for their damages. Drainage problem resolutions include voluntary fix, drainage improvement projects, drainage easements, and litigation. For example, one drainage problem resolution is a drainage easement which is in writing, recorded, and involves an attorney. In a drainage easement you would pay the neighboring landowner for the right to drain your water onto their property for the damages they will incur as a result. Drainage easements are usually perpetual but can be termed and include access and maintenance rights and responsibilities for the easement holder.
Tags: property law, nuisance, Partition, drainage, eminent domain
Comments: 0

It’s a common problem in Ohio: a dispute between two neighbors over connecting to a subsurface drainage tile system that crosses property lines. Can one neighbor cut off the other neighbor's access to a tile? Can one go onto the other’s property to maintain the tile? If one replaces their system, can they still connect to the other’s tile? Answers to neighbor drainage questions can be, like subsurface water, a little murky. But a recent appeals court decision on a Licking County drainage dispute provides a few clear answers.
The drainage system at issue. Landowner Foor’s clay subsurface drainage system had been on his farm for over fifty years. Foor’s system connected to a larger drainage tile that ran across neighbor Helfrich’s property and eventually emptied into a pond on Helfrich's land. Foor and his predecessors had used and maintained the line on Helfrich’s property prior to Helfrich’s ownership.
The dispute. Foor planned to replace his old system and also offered to replace the tile he connected to on neighbor Helfrich’s property. Helfrich refused the replacement. During installation of Foor’s tile, Helfrich dug up the tile area near the boundary and filled the hole with rocks and refuse, after which water welled up and flowed over the properties rather than through the tile on Helfrich’s property. Foor installed a standpipe on his side of the boundary. Helrich filed a complaint against Foor, claiming that Foor’s drainage was excessive and harmful. Foor responded by asking the court to establish his rights to a drainage easement and irrevocable license to use the property where the tile ran across Helfrich’s property. A jury ruled in favor of Foor, awarding him $30,000 in damages and both an easement and irrevocable license where the tile ran across Helfrich’s property.
The appeal. The Fifth District Court of Appeals affirmed two conclusions on the drainage rights of the two neighbors:
- First, the court held that Foor’s replacement of the pre-existing subsurface drainage system was not an "alteration" of the flow of surface water that would trigger Ohio’s “reasonable use” rule for drainage. The reasonable use rule allows a legal claim when an alteration of surface water flow causes an unreasonable interference with someone’s property. Because the newly installed tile did not increase the amount of water draining from Foor’s property and maintained the same amount of drainage that had occurred for over fifty years, the court concluded there was no “alteration” of surface water flow. Without an alteration, the reasonable use rule did not apply and Helfrich did not have a claim against Foor based on the reasonable use rule.
- Second, the court refused to overturn the jury’s award of a drainage easement and irrevocable license across Helfrich’s land to Foor. Helfrich argued there was not sufficient evidence for the jury’s verdict but the court disagreed. The jury determined that an “easement by estoppel” existed when Helfrich purchased the property, based on evidence that the easement was apparent and not hidden to Helfrich when he purchased the property; that Foor and his predecessors relied on the drainage access and had previously repaired the tile on the neighboring property; and that the prior owners of the Helfrich property had gone along with Foor’s maintenance and use of the drainage tile on their land. Likewise, the court held there was sufficient evidence to support the jury’s conclusion that the previous owners of the Helfrich property had granted the prior owners of the Foor property a “license” or right to enter their property and maintain the tile. The jury determined that substantial investment by Foor and his predecessors suggested that the license was intended to be permanent, and the appeals court found that sufficient evidence also existed to support that conclusion.
How does this affect future drainage disputes between neighbors? The Fifth District decision provides useful precedent for the difficult questions neighbor drainage disputes raise. The case supports the argument that a landowner has a legal right to maintain a subsurface drainage system that crosses property lines. As long as there is not an “alteration” of surface water flow and history shows prior use, reliance, and maintenance of the connecting tile line on a neighbor’s property, a landowner can be in a strong legal position for continued use and maintenance of the tile. Will other appellate courts agree with the Fifth District’s analysis, or will Helfrich ask the Ohio Supreme Court to review the decision? Answers to those questions, like subsurface water, are a little murky.
Read the Fifth Appellate District's decision in Helfrich v. Foor Family Investments.
Tags: drainage, subsurface drainage, ohio drainage law, reasonable use doctrine, easement
Comments: 0

We can count on legal questions about surface water drainage to flow steadily in the Spring, and this year is no exception. Spring rains can cause drainage changes made on one person’s land to show up as harm on another’s land. When that happens, is the person who altered the flow of surface water liable for that harm? Possibly. Here is a reminder of how Ohio law deals with surface water drainage problems and allocates liability for drainage interferences, followed by guidance on how to deal with a drainage dispute.
Ohio law allows landowners to change surface water drainage
Back in 1980, the Ohio Supreme Court adopted a new rule for resolving surface water disputes in the case of McGlashan v. Spade Rockledge. Previous Ohio law treated water as a “common enemy” to be pushed onto others, then absolutely prohibited any land changes that would increase surface water drainage for lower landowners. In McGlashan, the Court replaced these old laws with the “reasonable use rule” that remains the law in Ohio. The rule states that landowners do have a right to interfere with the natural flow of surface waters on their property, even if those changes are to the detriment of other landowners. But the right to alter drainage is limited to only those actions that are “reasonable.”
Drainage changes must be “reasonable”
Although it allows drainage changes, the reasonable use doctrine also states that landowners incur liability when their interference with surface water drainage is “unreasonable.” What does that mean? The law contains factors that help clarify when an interference is unreasonable, a determination made on a case-by-case basis. The factors attempt to balance the need for the land use change that altered drainage against the negative impacts that change has on other landowners. A court will examine four factors to determine whether the drainage change is unreasonable: the utility of the land use, the gravity of the harm, the practicality of avoiding that harm, and unfairness to other landowners. For example, if a land use change has low utility but causes drainage harm to other landowners, or the landowner could take measures to prevent unfair harm to others, a court might deem the landowner’s interference with drainage as “unreasonable.”
What to do if a neighbor’s drainage is causing harm?
The unfortunate reality of the reasonable use doctrine is that it requires litigation, forcing the harmed party to file an action claiming that the neighbor has acted unreasonably. Before jumping into litigation, other actions might resolve the problem. An important first step is to understand the physical nature of the problem. Can the cause of the increased flow be remedied with physical changes? Is there a simple change that could reduce the interference, or is there need for a larger-scale drainage solution? Identifying the source of the harm and the magnitude of the drainage need can lead to solutions. Involving the local soil and water conservation district or a drainage engineer might be necessary.
Based on the significance of the solutions necessary to eliminate the problem, several options are available:
- If identified changes would remedy the problem, a talk with a drainage expert or a letter from an attorney explaining the reasonable use doctrine and demanding the changes could encourage the offending landowner to resolve the problem. If the landowner still refuses to remedy the problem, litigation is the last resort. The threat of litigation often spurs people into action.
- Sometimes the issue is one that requires collaboration by multiple landowners. Identifying a solution and sharing its costs among landowners, based on acreage draining into the area, can be a way to solve the problem.
- For more substantial drainage problems, a petition for a drainage improvement with the soil and water conservation district or the county engineer might be necessary. Petitioned drainage improvements involve all landowners in the affected area and are financed through assessments on land within that area. A visit with those agencies would determine whether a petition improvement is necessary and if so, how to proceed with the petition.
- For smaller fixes, a landowner always has the option of filing a claim for damages through the small claims court. The estimated damages or repairs must fall below the $6,000 limit for small claims. A landowner can make the claim without the assistance of an attorney, and the dispute could be resolved more quickly through this forum.
As the Spring rains continue, keep in mind that the reasonable use doctrine sets a guideline for Ohio landowners: make only reasonable changes to your surface water drainage and don’t cause an unreasonable drainage problem for your neighbors. Where changes and interferences are unreasonable and landowners are unwilling to resolve them, the reasonable use doctrine is the last resort that provides the legal remedy for resolving the problem.
For more information on Ohio drainage law, refer to our law bulletin on Surface Water Drainage Rights.
Tags: drainage, reasonable use doctrine, surface water drainage, petition ditch law
Comments: 0
Ohio’s “petition ditch laws” are at last receiving a major revision. The Ohio General Assembly has passed H.B. 340, updating the laws that address the installation and maintenance of drainage works of improvement through the petition process. Some of Ohio’s oldest laws, the drainage laws play a critical role in maintaining surface water drainage on Ohio lands but were in serious need of updating.
An updating process began over seven years ago with the Ohio Drainage Law Task Force convened by the County Commissioners Association of Ohio (CCAO). CCAO charged the Task Force with the goals of clarifying ambiguous provisions in the law and embracing new technology and processes that would result in greater efficiencies, fewer misunderstandings and reduced legal costs for taxpayers. Task Force members included county commissioners, county engineers and staff, county auditors, Soil and Water Conservation District professionals, Ohio Farm Bureau staff, and Ohio State University's Agricultural & Resource Law Program and other OSU faculty. Rep. Bob Cupp sponsored the resulting H.B. 340, which received unanimous approval from both the House of Representatives and Senate.
Here are a few highlights of the legislation:
- Mirroring the timeframes, deadlines, notices, and hearings and appeals procedures for petitions filed with the county engineer and with the county soil and water conservation district.
- The use of technology may substitute for a physical view of a proposed drainage improvement site.
- The minimum width of sod or seeded strips will be ten feet rather than four feet; maximum width remains at fifteen feet.
- The entire amount of sod or seeded strips will be removed from the taxable valuation of property, rather than the current provision removing only land in excess of four feet.
- Factors to consider for petition approval are the same for SWCD board of supervisors and county engineers, and include costs versus benefits of the improvement, whether improvement is necessary, conducive to public welfare, will improve water management and development and will aid lands in the area by promoting economic, industrial, environmental or social development.
- Clarification that the lead county in a multi-county petition is the county in which a majority of the initial length of the proposed improvement would exist, and assignment of responsibilities to officials in the lead county.
- The bond amount for county engineer petitions increases to $1,500 plus $5 for each parcel of land in excess of 200 parcels.
- Additional guidance for factors to be considered when determining estimated assessments.
- Current law allows county commissioners to repair an existing drainage improvement upon complaint of an assessed owner if the cost doesn’t exceed $4,000. The new law increases that amount to $24,000 and allows payment of repair assessments in 10 semiannual installments rather than four.
We’re working with other Task Force members to prepare detailed explanations of the bill’s provisions and a guideline of the new procedures. County engineers and SWCD offices will begin following the revised law on the bill’s effective date of March 18, 2021, just in time for Spring rains and drainage needs.
Tags: drainage, ohio drainage law, petition ditch law
Comments: 0
In case you didn’t notice, we are deep into election season. Discussion of Supreme Court vacancies, presidential debates, and local races abound. Even with all the focus on the election, the rest of the world hasn’t stopped. The same is true for ag law. This edition of the Harvest includes discussion of ag-related bills moving through the Ohio General Assembly, federal lawsuits involving herbicides and checkoff programs, and some wiggle room for organic producers who have had a hard time getting certified with all the pandemic-related backups and shutdowns.
Changes to Ohio Drainage Law considered in Senate—The Ohio Senate’s Agriculture & Natural Resources Committee continues to hold hearings on HB 340, a bill that would revise drainage laws. The bill was passed in the house on June 9, 2020. The 157 page bill would amend the current drainage law by making changes to the process for proposing, approving, and implementing new drainage improvements, whether the petition is filed with the board of the Soil and Water Conservation District, the board of county commissioners, or with multiple counties to construct a joint county drainage improvement. The bill would further apply the single county maintenance procedures and procedures for calculating assessments for maintenance to multi-county ditches and soil and water conservation districts. You can find the current language of the bill, along with a helpful analysis of the bill, here.
Purple paint to warn trespassers? Elsewhere in the state Senate, SB 290 seems to be moving again after a lengthy stall, as it was recently on the agenda for a meeting of the Local Government, Public Safety & Veterans Affairs Committee. If passed, SB 290 would allow landowners to use purple paint marks to warn intruders that they are trespassing. The purple paint marks can be placed on trees or posts on the around the property. Each paint mark would have to measure at least three feet, and be located between three and five feet from the base of the tree or post. Furthermore, each paint mark must be “readily visible,” and the space between two marks cannot be more than 25 yards. You can see the text, along with other information about the bill here.
Environmental groups look to “Enlist” more judges to reevaluate decision. In July, the U.S. Court of Appeals for the Ninth Circuit decided it would not overturn the EPA registration for the herbicide Enlist Duo, which is meant to kill weeds in corn, soybean, and cotton fields, and is made up of 2,4-D choline salt and glyphosate. Although the court upheld registration of the herbicide, it remanded the case so that EPA could consider how Enlist affects monarch butterflies. The court found that EPA failed to do this even though it was required under the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA). On September 15, 2020, the Natural Resources Defense Council (NRDC) and other groups involved in the lawsuit filed a petition to rehear the case “en banc,” meaning that the case would be heard by a group of nine judges instead of just three. If accepted, the rehearing would involve claims that the EPA did not follow the Endangered Species Act when it made the decision to register Enlist Duo.
R-CALF USA has a “beef” with federal checkoff program. Earlier this month, the Ranchers-Cattlemen Action Legal Fund, United Stockgrowers of America (R-CALF USA) sued the United States Department of Agriculture (USDA) in the U.S. District Court for the District of Columbia. R-CALF USA has filed a number of lawsuits involving the Beef Checkoff program over the years, including several that are on-going. Their argument, at its most basic, is that the Beef Checkoff violates the Constitution because ranchers and farmers have to “subsidize the private speech of private state beef councils through the national beef checkoff program.” In this new complaint, R-CALF USA alleges that when USDA entered into MOUs (memorandums of understanding) with private state checkoff programs in order to run the federal program, its actions did not follow the Administrative Procedure Act (APA). R-CALF USA argues that entering into the MOUs was rulemaking under the APA. Rulemaking requires agencies to give notice to the public and allow the public to comment on the rule or amendment to the rule. Since USDA did not follow the notice and commenting procedures when entering into the MOUs, R-CALF USA contends that the MOUs violate the APA. R-CALF USA further argues that did not consider all the facts before it decided to enter into the MOUs, and therefore, the agency’s decision was arbitrary and capricious under the APA. You can read R-CALF USA’s press release here, and the complaint here.
Flexibility for organics during COVID-19. Back in May, due to COVID uncertainty and state shutdowns, the Risk Management Service (RMS) stated that approved insurance providers “may allow organic producers to report acreage as certified organic, or transitioning to organic, for the 2020 crop year if they can show they have requested a written certification from a certifying agent by their policy’s acreage reporting date.” RMS’s original news release can be found here. In August, RMS extended that language. The extension will provide certification flexibility for insurance providers, producers, and the government in the 2021 and 2022 crop years. Other program flexibilities may apply to both organic and conventional producers. Information on those can be found here.
Tags: COVID-19, ag law harvest, organic, National Organic Program, drainage, property law, trespassing, checkoff, herbicides
Comments: 0