LIABILITY FOR DRAINAGE DAMAGE

A GENERAL REVIEW IS PRESENTED OF THE LIABILITY OF STATE HIGHWAY DEPARTMENTS FOR DRAINAGE CLAIMS. THE BASIS OF STATE HIGHWAY DEPARTMENTS' DUTY AS TO DRAINAGE MAY COME FROM FEDERAL AND STATE CONSTITUTIONS, STATUTE LAW OR CASE LAW. A DETERMINATION OF THE NATURE OF THE DRAINAGE INVOLVED IS GENERALLY BASIC TO FINDING THE CORRECT LEGAL PRINCIPLE APPLICABLE. A HIGHWAY DEPARTMENT'S DRAINAGE PROBELMS WILL INVOLVE ONE OF THE FOLLOWING FIVE CLASSIFICATIONS OF WATERS: (1) NATURAL WATERCOURSE, (2) ARTIFICIAL WATERCOURSE, (3) SURFACE WATERS, (4) FLOOD WATERS, AND (5) SUBTERRANEAN WATERS, SPRINGS OR WELLS. THE MAJOR HIGHWAY DRAINAGE AND LEGAL PROBLEMS MAY COME FROM DIVERSION, COLLECTION OF WATERS, ACCELERATION AND INCREASE OF WATER RUNOFF, AND DRAINAGE STRUCTURE SIZE. COURTS DO NOT GENERALLY DISAPPROVE OF DIVERSION OF WATER IN HIGHWAY ENGINEERING WHERE THE WATERS THAT ARE TAKEN OUT OF THEIR NATURAL COURSE ARE LATER RETURNED TO SUCH COURSE WITHOUT MATERIAL INJURY TO ABUTTING LANDOWNERS. THE DRAINAGE PROBLEMS GENERALLY ENCOUNTERED IN IOWA HAVE COME FROM FOUR OF THE FOLLOWING FIVE TYPES OF LOCATION: (1) LEVEL LAND WITH POOR NATURAL DRAINAGE, (2) RIVER OR FLOOD BOTTOM LANDS, (3) SUBURBAN AND EXURBAN AREAS, (4) AREAS CONDUCIVE TO HIGH-VOLUME FLASH FLOODS, AND (5) AREAS CONDUCIVE TO EXCESSIVE SILTING. IN THOSE AREAS WHERE THERE ARE PRONOUNCED WATERCOURSES OR DRAINWAYS, FEW DRAINAGE PROBLEMS APPEAR. IN IOWA, THE DOCTRINE OF SOVEREIGN IMMUNITY FROM TORTS REMAINS STRONG. HOWEVER, THE DOCTRINE OF STATE IMMUNITY FROM TORT ACTION IS BEING WEAKENED EITHER BY LEGISLATIVE ACTION OR BY COURT RULINGS BASED ON CONSTITUTIONAL ARGUMENTS IN MANY STATES. IN THOSE STATES THAT HAVE RECOGNIZED AN ACTION FOR INVERSE CONDEMNATION IT IS PROBABLE THAT THE LANDOWNER WILL RECOVER IN MANY ACTIONS WHICH FORMERLY WOULD HAVE BEEN CONSIDERED PURELY A TORT. THE STATUTE OF LIMITATIONS ON DRAINAGE MATTERS AND THE NATURE OF LANDOWNER'S REMEDIES AGAINST HIGHWAY AUTHORITY FOR TEMPORARY OF PERMANENT DRAINAGE INJURY ARE DISCUSSED. HIGHWAY DRAINAGE LAW PRACTICE AND PROCEDURE ARE DESCRIBED. DISCOVERY PROCEEDINGS OF VARIOUS SORTS, INCLUDING ORAL DEPOSITIONS, SEEM TO BE BASIC TO ADEQUATE PREPARATION TO MEET THE EXACT LITIGATION CLAIM OF THE LANDOWNERS AND THEIR ALLEGED PROOF. EXISTING PLANS, INCLUDING THE CROSS-SECTION SHEETS, AND PERHAPS PLANS FOR SUCH HIGHWAY PRIOR TO ITS RECONSTRUCTION, WILL BE GENERALLY INDISPENSABLE.

  • Digital Copy:
  • Supplemental Notes:
    • pp 115-123
  • Corporate Authors:

    Highway Research Board (HRB)

    Washington, DC   
  • Authors:
    • Thomson, James E
  • Discussers:
    • Canada, Robert D
    • Montano, Joseph
    • Barrett, Richard E
    • Banister, D Ross
  • Conference:
  • Publication Date: 1962

Media Info

  • Media Type: Print
  • Pagination: pp 115-123
  • Monograph Title: Selected problems relating to highway laws, 1962
  • Serial:

Subject/Index Terms

Filing Info

  • Accession Number: 00238732
  • Record Type: Publication
  • Files: TRIS, TRB
  • Created Date: Sep 29 1994 12:00AM