When the Rains Come…What You Should Know about Surface Water Laws

Q: I own a home in a neighborhood. Recently, my neighbors asked if they could expand their driveway and add a concrete pad along the side of their garage. However, I am worried that the addition of the concrete pad and the driveway expansion will cause water to infiltrate my basement wall closest to their property. Do I have a right to tell them no because of potential water issues?  
A: Probably not. It was nice of them to ask, but they will probably need to get a permit from the local municipality to make these improvements. Ohio’s legal standard to weigh improvement benefits against the reasonableness of the harmful intrusion normally only applies if natural surface water flow is disturbed. In such situations, many factors must be taken into account before determining whether it is reasonable to change the natural surface flow of water on a particular piece of property. However, the above scenario does not apply to “natural” surface water flow. Therefore, it would be a good idea to write to your neighbors, asking them to install an adequate drainage system next to the concrete pad. This letter will put them on notice of their potential liability if your property is damaged.

Q: I am a landowner. Recently, an industrial complex was built near my home. During the initial construction phase they substantially changed the grading of the land and the elevated buildings re-routed most of the natural surface flow. Since the industrial complex was completed I have experienced serious problems with flooding on my property. Do I have a valid claim?
A: Yes. In resolving surface water disputes, Ohio courts now apply the “reasonable-use” rule. This rule states that a landowner is not always allowed to change the direction of surface water as he or she pleases. All those who possess land are legally allowed to make “reasonable” use of their land, but if alteration to the property interferes with the natural flow of surface water, and is “unreasonable,” the landowner may be liable for any damage that results. In your case, the industrial complex has most likely diminished surface area that was available for water drainage, which caused the neighboring properties to flood. Therefore, the industrial complex may have unreasonably altered its property, which interfered with the flow and drainage of water, and caused unreasonable damage to the neighboring properties. If this can be proven, the industrial complex would be liable to remedy the drainage and pay for any of your damages.

Q: The back of my property butts up to an active railroad line. I have a tile system that connects into the drainage ditch that flows along my side of the railroad line. For the last several years, the railroad company has neglected to clean out the ditch or the culverts, so water is backing up onto my property. Do I have claims against the railroad for damage to my property?
A: Yes. Ohio law (O.R.C. §4959.01) requires railroads to make sure that water that is unnaturally blocked by elevated tracks be directed to a proper outlet. If the railroad has a ditch or drainage system along your property, the railroad must provide an adequate and maintained outlet under ordinary circumstances. If the railroad fails to remove weeds and other debris along the tracks that block the flow of water, this would constitute an unreasonable use of land. First, you should give the company (railroad) written notice of your concerns to give the company an opportunity to correct the problem. If your second request for immediate remedy is ignored, then you may want to seek advice from an attorney and consider legal action.

2/5/2016

This “Law You Can Use” consumer legal information column was provided by the Ohio State Bar Association. It was prepared by David Pryor, an attorney with the Columbus firm of Gallagher Gams Pryor Tallan Littrell, L.L.P. 

Articles appearing in this column are intended to provide broad, general information about the law. This article is not intended to be legal advice. Before applying this information to a specific legal problem, readers are urged to seek advice from a licensed attorney.

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