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


Q:
I own several acres of land, much of it rolling terrain. I want to put up a large pole barn near my property line, but my neighbor says it will cause excess surface water to be funneled onto his land, which he says will cause erosion and other problems. Does he have a right to tell me I can't put up my barn because of potential surface water issues?
A: Maybe. The legal standards that are now used weigh the benefits to the landowner against the degree of potential harm to society. Each case is unique, and many factors must be taken into account before deciding whether or not it is "reasonable" to change the natural surface flow of water (by either blocking or discharging water) on a particular piece of property.

Q: I live in a housing development that is next to a farm. During heavy rains, especially after the farmer has plowed, excessive soil washes off his fields and into our back yard. Can I put up some sort of barrier to block off the extra soil? I do understand that such a barrier would cause water to form a pond on the farmer's land and might rot out his crops in that area.
A: Yes, the law does allow you to block out surface water, even though it may cause harm to an adjacent land owner, if that harm is "reasonable." Your interests, the development's interests, the farmer's interests, and society's interests would have to be weighed and balanced. If your housing development came to the area long after this farming operation had begun, then the housing development may have to take responsibility for some of the surface water issues. However, if the farmer's soil is eroding during these flooding periods, then it probably would be in society's best interest to find a way to curb the soil erosion. If you block out the surface water from the farmer's fields, the farmer may find it necessary to tile his "ponding" areas and cure both problems.

Q: I am a developer and I want to put a large privacy wall around our exclusive development that contains approximately 30 homes. The storm sewer system for this development would accommodate up to a "25 year" storm, which I understand means that my system would handle a storm so major that it would normally occur only once in 25 years. However, I understand that there's a remote possibility that a "50-year storm" or even a "100-year storm" might occur, which would overflow my system and spill excessive surface waters onto adjacent landowners. If this should happen, can I be held liable?
A: No one can ever say for certain whether or not you would be held liable. However, in one Cincinnati case involving identical circumstances, neither the developer nor the homeowner's association was held liable because the 100-year storm that caused excessive damage was considered unforeseeable, and the initial sewer system was adequate. In fact, in that case, the surface water was so excessive that it floated a van into the wall, breaking the wall, and a massive amount of water wiped out about eight homes on the property below the development.

Q: The back of my property butts up to an active railroad line. I have a tile system that connects to the drainage ditch that flows along my side of the railroad line. Any excess surface water is supposed to exit through a culvert under the railroad track. For the last several years, the railroad company has neglected to clean out either the ditch or the culvert, so my tiling system is getting backed up because it has no place to go. Do I have any claims against the railroad for my decreased crop yields and the damage to my drainage system?
A: Yes. There is a very old statute on the books that requires the railroads to adequately maintain their ditches and culverts. However, all railroad companies have drastically reduced their maintenance crews over the years. It is important to provide the companies with written notice of your concerns and problems. If they fail to address those, then you may want to consider taking legal action.

2/23/2010

Law You Can Use is a weekly consumer legal information column provided by the Ohio State Bar Association. This article 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. Before applying this information to a specific legal problem, readers are urged to seek advice from an attorney.

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