This weekend’s major flooding in Midland Michigan is sure to raise lots of questions regarding drainage between neighbors. Michigan subscribes to the “natural flow” doctrine which provides that higher elevation properties have a natural right to drain its water over lower elevation properties. This natural right is an easement implied by law. The lower elevation property has to accept the natural flow and cannot interfere with the natural drainage. This can mean that a backyard landscaping berm near a property line will not be lawful if it blocks an adjoining property from its natural drainage. A landowner who interferes with a natural flow can be liable for damages that occurs because of the blockage and may be ordered by a court to remove the flowage impediment.
The upland property also has obligations in regard to the natural flow. It is unlawful for an upland owner to restrict or concentrate the natural flow so as to create a faster or more concentrated flow. In other words, think of the results of putting your finger over a portion of the end of a hose. The upstream landowner can’t in effect do the same thing.
In addition to the natural flow doctrine, there is a second common way drainage rights between properties may arise. This is through a prescriptive easement. A prescriptive easement arises where a property owner uses the property of another contrary to the rights of the true owner for an uninterrupted period in excess of 15 years. Suppose a property owner has ponding issues on his or her land. They may excavate a shallow drainage swale changing the natural flow to direct the water off of their property onto their neighbor’s property. If this is done without permission of the neighbor and lasts uninterrupted for 15 years, a permanent drainage right may arise.
Midland Michigan business, real estate, construction and commercial lawyer W. Jay Brown provides experienced representation of businesses and individuals throughout Mid- Michigan. Brown Law PLC – 414 Townsend, Suite 201 – Midland Michigan 48640 – (989) 486-3676 – brown@brownlawplc.com – www.brownlawplc.com
Disclaimer: The foregoing is not intended to be specific legal advice on any particular set of facts or circumstances nor to establish any attorney-client relationship. Such materials are for informational purposes only. You need to contact a lawyer licensed in your jurisdiction for advice on specific legal issues or problems.