petition ditch law
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.
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.