ohio drainage law
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 uused 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.
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.
Depending upon who you talk to and when you talk to them, Ohio is either blessed or cursed as a water rich state. Droughts certainly occur, but in the past couple of years Ohio farmers have experienced record breaking rainfall both by measures of inches and intensity. As spring showers bring about a transition from winter to spring, we wanted to take a moment to look at Ohio’s surface water drainage laws.
Ohio courts follow the “reasonable use” doctrine for surface water drainage. Under this doctrine, a landowner may drain surface water from his or her property in a reasonable manner. When a landowner’s attempts to drain surface water from his or her property seem to result in harm to the property of another, legal issues may arise.
Courts and juries generally determine whether a landowner acted reasonably by looking at a number of factors, such as: the utility of the drainage, the gravity of the harm, the practicality of avoiding the harm, and whether it is fair to relieve the landowner of liability. These factors are examined and balanced on a case-by-case basis to determine whether the landowner should be found liable for the harm experienced by another.
Certainly there are ways to resolve a dispute before resorting to a lawsuit. Landowners may talk with their neighbors to work out an agreeable solution. Landowners also have the option to work with the county Soil and Water Conservation District or county engineer’s office to file a petition for a drainage improvement project that would address the drainage need.
For more information, check out our law bulletin on Surface Water Drainage Rights in Ohio, which is available HERE. It explains the “reasonable use” doctrine, describes how reasonableness is determined, and discusses remedies for harm caused by drainage.
New law bulletin explains Ohio surface water drainage law
The drainage of surface water is undoubtedly important to agricultural landowners. A question we often hear is whether someone can interfere with the surface water drainage on someone else’s property. The answer to this question lies in Ohio’s “reasonable use doctrine,” which establishes guidelines for when a landowner has a legal right to affect the drainage of surface water onto another property. Our new law bulletin, “Surface Water Drainage Rights,” explains this important legal doctrine.
Here is a quick summary of the bulletin:
- A landowner does not have an absolute privilege to deal with surface water as he or she pleases but does have a legal right to alter the flow of surface waters from the property.
- However, a landowner has a legal duty of “reasonable use” when affecting surface water drainage and can be liable if a harmful interference with the flow of surface water is “unreasonable.”
- To determine whether land uses and drainage interferences are “reasonable” or “unreasonable,” Ohio courts will examine four important factors: the utility of the land use or drainage use, the gravity of harm caused to others, the practicality of avoiding the harm, and the fairness of requiring other landowners to bear harm from the drainage interference.
- A harmed party can seek damages for injuries resulting from an “unreasonable” drainage interference. Options for pursuing damages include hiring an agricultural attorney to send a “demand letter” or file a negligence claim or using the small claims court for damages that are $6,000 or less.
- Another way to resolve a drainage interference is to work with the county Soil and Water Conservation District or county engineer’s office to develop a drainage improvement project. Landowners may use the drainage petition process, which requires all landowners within the area benefitted by drainage improvement project to pay for the project through property assessments.
For a detailed explanation of drainage rights, read the full bulletin here.
Litigation that arose from a drainage improvement project completed in 2002 has finally ended with a decision by the Ohio Supreme Court. The court announced today that it will not accept the case for review, which allows the ruling by the Third District Court of Appeals in favor of the Henry County Engineer to remain in place.
Richard and Rodney Rohrs sued the county engineer and several staff members in 2005 after a drainage project completed by the county flooded several acres of a farm field the Rohrs had rented from Gerald Westhoven. In the late 1990s, Westhoven approached the Henry County Engineer about flooding problems on Westhoven's farm and the possibility of cleaning out the open drainage ditch that ran between his land and the county road. The engineer proposed an alternative solution, to lay drainage tiles and fill the ditch, and offered to classify the work as a road safety improvement project to be handled through the engineer's budget rather than through the petition ditch process that would result in assessments on property owners.
The county engineer installed the new drainage system in 2002. Westhoven entered into a lease for the land with the Rohrs in the Spring of 2003. The Rohrs planted a tomato crop on the parcel; by July, part of the field was under water. After the harvest season, the county engineer and Westhoven attempted to locate a drainage tile that could be the source of the flooding but they could not find any tile in the flooded area. The county then installed a new catch basin near Westhoven's property to resolve the flooding problem, with plans to tie in any field tile that Westhoven might later discover on his land. The Rohrs continued to lease the farmland from Westhoven.
According to witness testimony, the cause of the 2003 flooding was a drainage tile and catch basin just south of Westhoven's property that had been cut off during construction of the road improvement project drainage system; the engineer's staff had filled the tile and catch basin because it did not appear to be a functioning tile and did not exist on any of the county's plans. Excavation on the Westhoven property several years later revealed a drainage tile located just 15 feet from the filled tile and catch basin. The newly discovered tile, which Westhoven had not previously reported to the engineer, had a seed bag stuffed into its outlet, which was near the filled catch basin. The Rohrs claimed that the engineer's staff had intentionally stuffed the seed bag into the functioning tile, while the engineer's staff claimed they did not know about the tile. The county surmised that the seed bag had been used in the previous filling of the tile and catch basin that they had believed to be non-functioning.
The Rohrs sought $70,000 for losses to their 2003 tomato crop as a result of the flooding. Their legal causes of action included several tort claims and violations of federal and state due process rights. They also asked the court for a writ of mandamus to order the county to compensate them for a partial "taking" of their property by the county engineer. The Henry County Court of Common Pleas, after seven years of litigation, rejected each of the Rohrs' claims.
The Rohrs appealed with no avail to the Third District Court of Appeals. The appellate court agreed with the trial court's conclusion that state law prevented tort liability for the flooding because the county was entitled to governmental immunity under Ohio Revised Code 2744.02(A)(1) i. The court stated that the Rohrs had failed to prove that any of the law's exceptions to governmental immunity applied to the situation. In response to the Rohrs' argument that the county had committed a partial "taking" of property, the appeals court agreed with the trial court that a "taking" had not occurred for three reasons: because the flooding was accidental and incidental rather than an intentional taking of property, because the alleged taking was not for a public use as required by the Constitution and because the Rohrs had other remedies for their harm, such as a tort claim against Westhoven and the failed tort claims against the county engineer. As such other remedies were available, the court also agreed with the trial court that the Rohrs failed to prove violations of their due process rights.
In their request for a review by the Ohio Supreme Court, the Rohrs focused on the lower courts' conclusions that a "taking" had not occurred. The Henry County Farm Bureau and the Ohio Farm Bureau filed a brief in support of the Rohrs, urging the Supreme Court to accept the case and review the takings issue. The Court today declined to accept the case by a vote of 5--2 with Justices Paul Pfeifer and Judith French dissenting. Without a review by the Ohio Supreme Court, the appellate court decision stands as the final resolution of the case.
The decision of the Third District Court of Appeals in State ex rel. Rohrs v. Germann is available here.