LEGAL ASPECTS AND GUIDELINES PERTAINING TO DRAINAGE OF SURFACE WATERS

IN SOME JURISDICTIONS THE STATE HAS BEEN HELD LIABLE IN THE SAME MANNER AS A PRIVATE OWNER; WHERE SOVEREIGN IMMUNITY PERSISTS, DAMAGE TO PRIVATE PROPERTY CONSTITUTES A NUISANCE, TRESPASS, OR NEGLIGENCE. SUCH ACTIONS ARE HELD TO BE A TAKING OR ADVERSE POSSESSION OF PRIVATE PROPERTY. IN SOME CASES, THE STATE MAY BE HELD RESPONSIBLE, EVEN THOUGH IT COMMITTED NO OFFENSE, BECAUSE IT POSSESSES THE ONLY POWER TO PROVIDE RELIEF, E.G., IF A HIGHWAY DEPARTMENT BUILDS A ROAD THAT ATTRACTS DEVELOPMENT WHOSE EFFECT IS TO RENDER EXISTING DRAINAGE FACILITIES INADEQUATE. THE PRESENT STUDY EXAMINES THIS QUESTION AND THE RELATED ONE OF WHETHER LOWER LAND IS SUBSERVIENT TO UPPER LAND WITH RESPECT TO UNWANTED WATERS. THREE LEGAL GUIDELINES ARE SUGGESTED FOR THE ENGINEER IN COMPARING OR TESTING DESIGNS: (1) THE UPPER OWNER CANNOT TAP AN ADDITIONAL SOURCE OF WATER AND DISCHARGE IT UPON THE LOWER OWNER OR SERVIENT TENEMENT; (2) THE UPPER OWNER HAS NO RIGHT, BY ARTIFICIAL MEANS (PAVED DITCH, CULVERT, CATCH BASIN, ETC.) TO (A) CHANGE THE NORMAL FLOW OF WATER, (B) INCREASE TO THE NORMAL FLOW OF WATER, OR (C) ACCELERATE THE FLOW OF WATER AT ANY ONE POINT, IN SUCH A MANNER AS TO UNREASONABLY DAMAGE THE LOWER OWNER; AND (3) IN EFFECTING A REASONABLE USE OF HIS LAND FOR A LEGITIMATE PURPOSE, A LANDOWNER, ACTING IN GOOD FAITH, MAY DRAIN HIS LAND OF SURFACE WATERS AND CAST THEM AS A BURDEN UPON THE LAND OF ANOTHER, ALTHOUGH SUCH DRAINAGE CARRIES WITH IT SOME WATER WHICH WOULD OTHERWISE HAVE NEVER GONE THAT WAY, IF (A) THERE IS A REASONABLE NECESSITY FOR SUCH DRAINAGE, (B) REASONABLE CARE IS TAKEN TO AVOID UNNECESSARY INJURY TO THE LAND RECEIVING THE BURDEN, (C) THE UTILITY OR BENEFIT ACCRUING TO THE LAND DRAINED OUTWEIGHTS THE GRAVITY OF HARM RESULTING TO THE LAND RECEIVING THE BURDEN, AND (D) WHERE PRACTICABLE, IT IS ACCOMPLISHED BY REASONABLY IMPROVING AND AIDING THE NORMAL AND NATURAL SYSTEM OF DRAINAGE ACCORDING TO ITS REASONABLE CARRYING CAPACITY, OR IF, IN THE ABSENCE OF A PRACTICABLE NATURAL DRAIN, A REASONABLE AND FEASIBLE ARTIFICIAL DRAINAGE SYSTEM IS APPLIED.

Subject/Index Terms

Filing Info

  • Accession Number: 00238916
  • Record Type: Publication
  • Files: TRIS, STATEDOT
  • Created Date: May 16 1972 12:00AM