February 2013
Township Law E-Letter
SURFACE WATER DRAINAGE DISPUTES
4151 Okemos Road
Okemos MI 48864
517.381.0100
http://www.fsbrlaw.com
Although townships do not have general jurisdiction to regulate private
drains, property owners often turn to the township as a resource when a
private drainage dispute arises. As property owners themselves,
townships also encounter their own surface drainage issues. Many
important but difficult issues may arise between neighboring property
owners concerning surface water runoff. This E-Letter highlights some of
the legal battles that property owners, including townships, face
regarding private drainage matters.
Private Drainage Disputes
Private drainage disputes many arise quickly
and turn once friendly neighbors into plaintiffs
and defendants. To avoid costly litigation, it is
important to teach private property owners
about their rights and responsibilities. In order
to assist your constituents, you should have a
general understanding of:
• Natural drainage rights
• Prescriptive easements
• Trespass or nuisance caused by flooding or
increased quantity or flow of water
• Property damage caused by drain maintenance
Summaries of these common private drainage
disputes are highlighted below.
Natural Drainage Rights
The “natural flow doctrine” states that each
riparian owner (someone who owns land that
touches a body of water) has a right to have the
water flow naturally.
A common example of this doctrine is natural
drainage. The water naturally flowing from one
property located at a higher elevation to a
neighboring property at a lower elevation creates rights in the higher property owner against
the lower property owner to not obstruct the
natural drainage course. However, please remember that the natural flow doctrine only pertains to natural flow, and not altered drain patterns, such as manmade ditches.
Prescriptive Easements
Many landowners have recorded easements
that run across different parts of their land for
utility companies or public drains. Additionally,
landowners may have, or be subject to, prescriptive easements without even knowing it,
since they are implied by the surrounding circumstances, rather than expressly granted in a
written easement. document
A prescriptive easement is acquired through
the uninterrupted use of another’s land for a
period of fifteen years. This uninterrupted use
must be “adverse” to the rights of the record
owner. The use does not need to exclude the
record owner from using their land.
For example, if a farmer tiles his land and outlets the drain tile onto an neighbor’s property,
and does so uninterrupted for at least 15 years,
the farmer may have a prescriptive easement
over the neighboring property to continue to
use the outlet, regardless of the natural flow of
water.
Township Law E-Letter
The property owner may not change any conditions on his or her land that would result in a
greater velocity or amount of water to flow
onto the neighboring property. Even if a municipality constructs a drain at the request of a
private property owner on his or her land, the
landowner will be responsible for exceeding the
scope of the prescriptive easement.
Alternatively, the neighboring property owner
is under a duty not to interfere or obstruct the
prescriptive easement and may be ordered by a
court to remove anything that obstructs the
easement or the outlet.
If a landowner has a prescriptive easement
over a “not-so-neighborly” neighbor, the landowner may want to consider having an easement recorded at the local register of deeds office, specifically listing the rights in the prescriptive easement. Having a prescriptive easement
recorded may save the landowner from any potential litigation costs if the neighbor attempts
to unlawfully block the prescriptive drainage.
Trespass and Nuisance
Most commonly, actions for trespass are initiated by landowners to recover damages caused
by a neighbor’s unlawfully interfering with or
disturbing the possession of their property.
An action for trespass can result from many of
causes. Some landowners may find themselves
in need of the construction, repair or maintenance of private drains that traverse their land
as well as a neighboring property owner’s land.
A landowner should seek permission to enter
a neighbor’s land to perform work. Although it
may seem unnecessary and even burdensome
to put an agreement in writing, many neighbors
wind up spending a significant amount of time
and money in court over exactly how much
work can be done and in what locations. It is
better to be safe than sorry by putting specifics
in a written agreement signed by both parties,
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Fahey Schultz Burzych Rhodes PLC
especially when the neighboring landowners
have no intentions of moving any time soon.
An action for private nuisance differs slightly
from trespass. A nuisance action is generally
filed when the actions of a third party interfere
with or disturb the property owner’s interests
in the private use and enjoyment of his or her
property. However, when there is a dispute,
many landowners claim both trespass and nuisance in the alternative in a single lawsuit.
There are many causes that can give rise to a
private nuisance action. A person may be liable
for private nuisance if:
(1) The person interferes with the use or enjoyment of the property;
(2) The invasion results in significant harm;
(3) The person’s conduct is the legal cause of
the invasion; and
(4) The invasion is either (i) intentional and unreasonable, or (ii) unintentional and otherwise actionable under the rules governing
liability for negligent, reckless, or ultra hazardous conduct.
Pollution of groundwater may be considered a
private nuisance. However, property value depreciation resulting from ungrounded fears and
publicity on the groundwater contamination
leak from a chemical company, without any actual contamination to the groundwater, does
not rise to an actionable private nuisance.
Neighboring landowners often disagree over
property lines or are simply unaware exactly
where the property line is located. What may
seem to be a minimal risk to some to remove a
bothersome tree in the back yard, or maintain a
ditch that comes close to the neighbor’s yard,
may turn out to be quite an expensive legal battle.
Michigan law provides that when a person
willfully and voluntarily damages or removes a
tree or digs up soil from another person’s prop-
Township Law E-Letter
erty, that is a trespass. As a remedy for a trespass, the trespasser may be liable for three
times the amount of damages that the property
owner actually incurred. These damages are referred to as “treble damages,” and can certainly
come as a surprise to a person accused of being
a trespasser.
Treble damages are only applicable to willful
and voluntary trespassers. They are meant to
punish a wrongdoer. However, a trespasser
who winds up as a defendant has the burden to
prove the trespass was casual and involuntary.
If a court finds that trespasser defendant was
casual and involuntary, they will only be liable
for single damages. A court will look at factors
such as whether a trespasser displays mere negligence, as opposed to willful or wanton conduct
or evil design when determining whether treble
damages will apply.
The attached brochure summarizes property
owner issues and disputes involving surface water drainage, and may be useful information to
provide to your constituents.
—By Lauren K. Dutcher
(517) 381-3201
LDutcher@fsbrlaw.com
Fahey Schultz Burzych Rhodes PLC
Lauren K. Dutcher
Fahey Schultz Burzych Rhodes PLC is proud to
welcome Lauren K. Dutcher as an attorney practicing in municipal and drain law. She joins the
firm’s growing Township Law
Group, which represents
more than 80 townships
across Michigan.
After serving as a law clerk
at our law firm, Lauren passed
the Michigan Bar Exam and
became a licensed Michigan
attorney in 2012.
Lauren K. Dutcher
Lauren received her law degree from Michigan
State University College of Law. While in law
school, she earned an Achievement Award in
State and Local Government Law and received
several Dean’s List recognitions. She also holds
Bachelor’s degrees in Journalism and Political Science from Michigan State University.
Before joining our law firm, Lauren worked in
the Michigan House of Representatives Democratic Caucus. She also completed internships
with the Lansing City Attorney’s Office and the
Michigan Department of Attorney General’s Environment, Natural Resources and Agriculture Division.
Fahey Schultz Burzych Rhodes PLC, Your Township Attorneys, is a Michigan law firm specializing in the representation of Michigan townships. Our lawyers have more than 130 years of experience in township law,
and have represented more than 130 townships across the state of Michigan. This publication is intended
for our clients and friends. This communication highlights specific areas of law, and is not legal advice. The
reader should consult an attorney to determine how the information applies to any specific situation.
Copyright © 2013 Fahey Schultz Burzych Rhodes PLC
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Property Owner Surface Water Disputes
The rights and responsibilities of private property owners regarding surface waters can be a
confusing subject. Landowners should have a basic awareness of the potential risks and liabilities that
they can face when dealing with the property rights of a neighbor. The following addresses the basic
elements of some of the most common surface water drainage issues that can arise.
KNOW YOUR RIGHTS
Natural Drainage
COMMON LAWSUITS
Trespass/Nuisance
Michigan courts rely on common law doctrines regarding riparian rights. The two most relevant are:
The Natural Flow Doctrine: If your property is at a
higher elevation than your neighbor, the water that
falls on your property most likely flows over your
neighbor’s land. You have a right to continue, and
your neighbor has a duty to not interfere with, this
natural flow.
The Reasonable Use Doctrine: If your property
touches a river or stream, the reasonable use doctrine will allow you to use the water for all of your domestic needs (drinking, bathing, consumption), however, any commercial or artificial use is limited and
must not diminish the amount or quality of water.
Whenever you enter your neighbor’s property for any
reason, be sure to have permission and clarify the
purpose and scope of what you will be doing on his or
her land. Many unnecessary disputes arise from:
• Failure to seek permission; or
• Exceeding or misunderstanding permission
granted.
Nuisance is similar to trespass, but instead of a physical intrusion, a nuisance is interfering with a person’s
use and enjoyment of their land. An example of a
nuisance is the pollution of groundwater. If a river
runs over your land, you and your neighboring properties have a responsibility to not pollute the water.
You will be liable for any damage that occurs to a
neighboring property, and vice versa.
Prescriptive Easements
A prescriptive easement is a property right in another’s land that gives the bearer a legal right to continue to use the land in the same manner. This will
give you certain rights against your neighbor if he or
she attempts to block that use. You may have a prescriptive easement if:
• Your neighbor has not given you permission to
use his or her land in a certain way;
• The “use” need not exclude your neighbor from
using his or her property; and
• The “use” is uninterrupted for at least 15 years.
Costs of Property Damage
If a person willfully and voluntarily enters another’s
land and damages or cuts down trees or removes any
soil, that person may be liable for up to three times
the amount of actual damages caused. To avoid this,
be sure to:
• Clearly identify the amount of and the location of
any work that will be done in writing; and
• Do not exceed the boundaries of the agreement,
even if it would be in the best interest of your
neighbor , until you get permission in writing.
Fahey Schultz Burzych Rhodes PLC is a Michigan law firm specializing in the representation of
Michigan townships. Our lawyers have more than 130 years of combined experience in Michigan township law and have represented more than 130 Michigan townships. This communication highlights specific areas of law and is not legal advice. The reader should consult an attorney to determine how the information applies to any specific situation.
Copyright © 2013 Fahey Schultz Burzych Rhodes PLC