Ohio Drainage Laws

Robert Moore

Water probably affects crop production more than any other factor. Lack of rain has the obvious affect of reducing yields but draining excess water can be just as critical. Therefore, some of the most contentious and intense farm related litigation is drainage issues. Most farmers have little tolerance for actions that cause problems with their land and drainage systems.

Much of Ohio has a complex drainage system that starts with field tile, waterways, and ditches. For producers relying on drainage systems, an understanding of Ohio’s drainage laws is important to protect their interests and avoid problems.

Ohio’s drainage laws are based on the reasonable use theory. A landowner has the right to modify his land to improve drainage provided that his actions do not cause unreasonable harm to other landowners. An example of reasonable use might be installing a grass waterway to collect surface water. The waterway may concentrate the surface water as it flows onto the neighboring property but probably not enough to cause unreasonable harm to the neighboring property. Conversely, installing an open ditch that empties onto the neighboring property is more likely to be unreasonable. The concentration and occasion heavy flow of water from the ditch is much more likely to cause erosion and other damage to the neighboring property. There is no formula or precise definition of what is reasonable, it is a subjective opinion based on the facts and circumstances of each unique situation.

Another common legal issue with drainage is the upper landowner’s right to repair and maintain tile on the lower landowner’s property. For example, Landowner’s land is not draining properly because of a tile blowout on Neighbor’s lower property. Neighbor refuses to fix the tile because he does not want to spend the money. Ohio law gives Landowner the right to access and repair the tile on Neighbor’s property provided that the tile has been in place for at least 21 years. This is known as a prescriptive easement. Without prescriptive easement, a landowner at the bottom of a watershed could cause a total drainage failure if he simply refuses to repair a drainage problem on his property. It is important to note that a prescriptive easement only allows the tile to be repaired or replaced with the same size tile. That is, a prescriptive easement cannot be expanded in size or scope. If the old tile was four inch tile, the new tile can be no larger than four inches without the landowner’s permission.

Landowners will sometimes find themselves faced with a major failure of a drainage system throughout a watershed. This is often the case where the old clay tile put in 90 years ago has finally started to fail. The watershed may contain several thousands of acres and many landowners. The cost to repair or replace the tile system can easily be several hundred thousand dollars and the landowner will likely not have the resources to pay for the entire project himself.

Ohio law allows the landowner to file for a ditch petition. While there are a few variations, usually the landowner files a ditch petition with the county commissioners asking the county to repair or replace the drainage system and access the costs to the landowners in the watershed. In considering the petition, the commissioners must determine that the drainage project is necessary and that its benefits outweigh its costs. Persons filing ditch petitions often encounter significant opposition. Some landowners in the watershed may not feel that new drainage is needed or that it will improve drainage on their property. Other landowners simply do not want to be forced to spend money on drainage.

County engineers play a critical role in the ditch petition process as they are charged to design a plan for the proposed drainage system and assess the cost-benefit of the plan. The county engineer also determines how the costs of the project will be allocated among landowners. This can often be a difficult situation for the county engineer as they may not have training or expertise in measuring the benefits of drainage or conducting a cost-benefit analysis. Additionally, it is nearly impossible to assess the costs to the various landowners without at least one landowner thinking his assessment is unfair or excessive.

In each situation above, litigation may be required to resolve the issue. It is always best to try to work out a mutual solution with the other parties but sometime that is not possible and litigation is the only remedy. A landowner may need to file a lawsuit to force a neighbor from discontinuing an unreasonable drainage practice or to allow access to their property to repair downstream tile. If the county commissioners deny a ditch petitioner, the landowner can file an appeal with the county common pleas court for reconsideration.

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