Q: "My situation is that my land was drained about 30 years ago, in my father’s time, with a 12-inch pipe emptying into an open drain in my neighbour’s land. My neighbour used to keep the open drain clean. He has since passed away and his children are leasing the land.

“There has been no maintenance done on the open drain before it empties into a culvert under a motorway. I estimate the cost of emptying it would be in the region of €3,000 and a further €300-€400 would be required per year to maintain the drain. The neighbour’s land would benefit hugely also from drainage as their land is quite wet with a lot of poaching.

“The owners of the land will not engage and refuse to carry out any work. I am a tillage farmer and I lost a big crop over the last two years due to flooding. Do my neighbours have any obligations?”

Answer: This is an issue that affects a lot of landowners, especially at this time of year, and the law is rather complex as it depends on the circumstances of the case. Different rules apply depending on whether the drains are natural or whether they were created artificially.

Where water naturally drains from one property to another, a natural right of drainage exists under common law. However, the channelling of water by a pipe or other artificial means onto land where it would not naturally flow can only exist as an acquired right or in legal terms, as an easement. It would appear from your query that the water was channelled by artificial means but to be clear, I will set out the law as it relates to both situations.

Easement for artificial drains

If you or your neighbour created drains, it would appear that water has been channelled by artificial means and so your land may benefit from an easement or right of drainage.

To establish an easement in an artificial watercourse such as pipes, ditches or drains, the court takes into consideration: (a) the character of the watercourse, whether permanent or temporary; (b) the circumstances under which it was presumably created; and (c) the mode in which it has been in fact used and enjoyed.

For example, in your case, where a drain was constructed through the lands of the neighbouring landowner, it would have been necessary for both of you to give your consent. Its construction was of equal benefit and you would both have a right to use it, so long as it continued to exist.

So after 20 years enjoyment, each of you would have acquired a prescriptive right to the flow.

So, if your neighbour were to block the drains on his land, which would cause the flow of water to back up, they may be deemed to be interfering with your rights.

You, as the person who established an easement has a right of entry on to your neighbour’s land to clean and repair the drain. It is worth noting that your neighbour is not under an obligation to keep the drains clean, although from a practical viewpoint, it is probably in their interest to stop their own land from flooding. Nor are they liable for flooding of the land if they don’t clean out the drain.

Consequently, assuming you have acquired an easement in respect of water and drainage, you should be entitled to enter on the lands for the purpose of cleaning and repairing the watercourse.

Natural rights under common law

In a situation where water naturally drains from one property to another, the owner of the land bounding a natural river or stream can protect against flooding of his lands by banking a river, for example. Equally, the owner of lower lands can take action to pin back or stem the flow of water.

So let’s assume that your neighbour is on the higher land and you are on the lower land. If water on the higher land naturally passed onto the lower land, you do not necessarily have a cause of action if the natural flow of water floods your land. However, you can protect your lands by making a barrier, even though this may cause damage to the higher landowner.

Also, an action to pen back the water must be no more than is reasonably necessary to protect the enjoyment of your lands.

You may, however, have cause of action where your neighbour fails in his duty of care to do what was reasonable in all the circumstances to prevent a large and dangerous quantity of water on his land causing damage on your land.

For example, if a stream is known to flood, and if the risk of flooding to your land can be reduced by your neighbour cleansing and scouring the watercourse, he will be in breach of duty if he does nothing at all.

But if the only remedy is substantial and expensive works, he may discharge his duty by telling you that they are free to do the works at your own or at a shared expense.

So, I would suggest that you formally put your neighbour on notice that you are entering on their lands to carry out the works and seek some contribution towards the cost. If they are not willing to contribute, it is probably still in your interests to do the work to stop your lands from flooding and prevent future losses of crops.

Disclaimer: The information in this article is intended as a general guide only. While every care is taken to ensure accuracy of information contained in this article, Aisling Meehan, Agricultural Solicitors does not accept responsibility for errors or omissions howsoever arising. E-mail ameehan@farmersjournal.ie

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