Do You Know Your Surface Water Rights?

Spring is coming, and that means a lot of rain in my part of the country. This reminds me of some issues that have come up with clients who were surprised to when their backyards flooded what the law of surface water rights is.

The Supreme Court of Ohio has held that land of a lower elevation is burdened with a "servitude" to receive the natural flow of surface water from land of a higher elevation. That means that your neighbor with the higher ground has an implied right to allow his or her surface water to flow onto your property. But, do you have to take it? Yes ... well mostly. You only have to take that surface water onto your property so long as it comes in its natural state and quantity, and only so long as the flow of that surface water has not been altered by some artificial means. Your uppity neighbor cannot manage his or her flooding problems by building a channel that captures or redirects surface water and then causes it to flow as a stream onto your property.

Somewhat different rules apply if your land is considered to be in an urban location versus a rural location. The cases have not developed distinctions in the definitions of urban versus rural, so it is best to speak to a lawyer if you have questions.