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Serving: IA
wet flooded field
SWAMPED: After an exceptionally wet spring, many farmers are planning to install new and better drainage systems.

Flooded land raises legal questions

Legal Issues: Liability involving flooding and drainage concerns farmers.

With our unusually wet spring, flooding and excessive rainfall have raised questions from readers regarding legal aspects of drainage in Iowa. Many farmers are planning to install tile and do other conservation work this fall; some are doing work this summer on prevented planting acres.

Generally, a landowner may drain his or her land in the “general course of natural drainage.” Iowa Code Section 468.621 says landowners may drain their land by constructing or reconstructing open or covered drains and discharging the drains in any natural watercourse or depression, so the water will be carried to the natural watercourse. Iowa courts have held that drainage tile qualifies as a drain under the Iowa code. Further, the code states that if the drainage occurs “wholly upon the owner’s land, the owner is not liable in damages for the drain.”

Who is responsible for drainage?

What happens if damage occurs on a neighbor’s land due to drainage improvements? If the drainage substantially increases the quantity of water or changes the manner of discharge of the water onto the land of another, then the landowner may be subject to liability for the additional or changed drainage.

Simply put, the owner of a dominant estate has a natural easement to drain surface waters in the natural course of drainage. The downgrade landowner is only entitled to relief from the courts if the volume of water is substantially increased, or if the manner or method of drainage is substantially changed and they have suffered actual damage to the property.

Of course, there are some additional concerns a contractor or landowner will want to think about before installing additional drainage tile. Is the land in a drainage district? If so, the landowner will want to consult the specific drainage district rules in the Iowa code and consult with the drainage district board.

What if prior owners of adjoining parcels of land entered into a drainage agreement? In that case, consider these factors:

Ensure compliance with farm programs. As always, if you are enrolled in the USDA farm program, check with the local Farm Service Agency before installing additional drainage tile, terraces or other improvements. There might be some cost-share money available for certain projects. You also want to inform your farm tax preparer about new tile installed to take advantage of depreciation provisions. Also, with erosion issues occurring because of heavy rainfall, be sure you are in compliance with your conservation plan.

Crop residue “trespassing” and damage across property lines. We received an interesting question from a reader: “If I cut my grass hay in my grass waterway and before I get it baled, the hay washes across the road or across the property line into another farmer’s fence, field or pasture during a strong storm, am I liable for damages?”

The simple answer to this question is whether or not the reader acted in a reasonable manner after the hay was cut, and whether the hay washing across the road caused actual damage to the neighboring landowner. If so, what are those damages and how do you quantify them?

In any dispute involving drainage, it all comes down to the facts. The practical approach in this situation would be to meet with the neighboring landowner and resolve the situation. If the issue cannot be resolved amicably, then you may want to consult your attorney.

Herbold-Swalwell is an attorney with Brick-Gentry in Des Moines. Email erin.herbold.swalwell@brickgentrylaw.com.

 

 

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