land drain and ****ty neighbours

the GALL

Im in a dilly of a pickle with this one,
Garden A is under water where it meets garden B,
Garden B is Level,
Garden C is below garden B and Garden A,
If garden B made a chanel from A to C is it illegal (apart fom just badness) garden C would be under water but as far as the two (b,c) its A's problem as they are the one under water,it's only the small bit(6 foot distance 4 inches in height) between A and c.
If B Makes this canel Between A and C is B is liable to fix the problem.I.E Garden C flooded.
And before this goes to legal issues Im just lookin for the gardeners opion,
Cheers
the Gall

bmaxi

Why do you assume C will be under water? Perhaps he has better drainage than either of the other two. Personally, I can't see how you can be held responsible for the topography of the area you live in and if it were me I would be striving to get the best drainage I could in my garden. Reading between the lines I'm assuming A is not approachable on the subject, if this is the case I would be advising C to improve the drainage in his garden.

Minder

You might get a better answer on the legal forum. Any one of the following might apply...

The Common Enemy Doctrine
The common enemy doctrine is a rule derived from English common law. It holds that since surface water is a "common enemy" to landowners, each landowner has the right to alter the drainage pattern of his land (for example by building dikes or drainage channels) without regard for the effects on neighboring parcels. Typically, a landowner can capture surface water (e.g. by rain barrels or dams) as well, and lower landowners will not have a cause of action unless the diversion is malicious.

The Civil Law Rule
The civil law rule (so named because it is derived from the civil law systems of France and Spain) is effectively the opposite of the common enemy doctrine. It holds that the owner of a lower parcel of land must accept the natural drainage from those parcels above his, and cannot alter the drainage pattern of his own land to increase the drainage flow onto parcels lower than his own. For this reason, this rule is sometimes referred to as the "natural flow rule".

Application of the civil law rule in its purest form would inhibit the development of land, since virtually every improvement on a parcel would alter the natural drainage. For this reason, this rule has been modified in those jurisdictions that use it, to permit reasonable changes in natural flow, often weighing the competing interests of neighboring landholders with the benefit of the development of the parcel.

The Reasonable Use Rule
The reasonable use rule presents an alternative to both the common enemy doctrine and the civil law rule. It allows a landowner to make "reasonable" alteration to the drainage pattern of his parcel, with liability only occurring when the alteration causes "unreasonable" harm toward neighboring parcels. Judicial mitigation of the common enemy doctrine and civil law rule often results in an approximation of the reasonable use rule.

Interesting problem, if the Common Enemy rule applied and the drainage pattern could be altered without regard to the neighbour, what would prevent the neighbour from building a clay bund to stop the ingress of water across his land - the rule works both ways.

bmaxi

Wow, are we talking about running off extra surface water from the current soggy summer or diverting the course of the Shannon. Was that legislation written for the U.S.? it would be typical of them to have contradictory laws to make the lawyers even richer. I would imagine every local authority in the country is in breach of them at the moment.

Minder

bmaxi wrote: »

Was that legislation written for the U.S.?

The common enemy doctrine is a rule derived from English common law.

The civil law rule (so named because it is derived from the civil law systems of France and Spain.

Source Does that help.

bmaxi

So that's a "yes" then.:)

Joeyboy

I have recently built a new house and the site is below a 20 acre field which has a natural slope towards my site. With the really heavy rain of 2 weekends ago my site was flooded and I had to take off over 20,000 gallons of surface water that flowed into my place from the field.
I contacted a solicitor friend of mine and he maintains that it is the responsibility of the farmer NOT to allow excessive surface water (caused by rain water) NOT a naturally flowing stream or river, to enter and flood my property. He said it was a form of "trespass".
Can anyone out there shed some light on this as I will otherwise have to embark on an expensive method of "damming" the water from the field to stop it entering my site.
As it happens I do have a land drain running inside my border that is drained into a 9" concrete pipe in this farmers field (with his permission). The problem is that this 9" pipe just isnt big enough to take the volume of water and my land drain is just backing up..
Advise would be greatly appreciated.
Thanks,
Joeyboy

mikom

@ Joeyboy, how would it be the farmers fault? Your architect/engineer or the planning authority possibly for allowing you to build in an area subject to flooding. During a drought would the farmer have a claim that you are sapping all the available moisture from his fields because you are lower. What next, should the farmer prevent earthworms from his site entering yours.
You wanna have a chat to an impartial solicitor I reckon.

Joeyboy

The site was originally part of his land and as such he would have a responsibility to ensure that his land is not unduly flooding it especially since he was the one sold it in the first place for residental use.
Im looking for info from someone who may have already had experience of this and not necessarily your personal opinion. :P