Legal matters: what’s my liability if I block drains under the rewetting scheme?

“I am thinking of blocking some drains on my land as part of the Government’s upcoming peatlands rewetting scheme. I am nervous about it though as the blocked drains on the farm might actually cause water to build up and flood onto a neighbouring farmers land because the water will have nowhere to escape. If I do block the drains, am I liable for the flooding and/or the potential loss of income incurred by my neighbour farmer?”

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 (law based on previous court decisions). 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 (a right across another persons’ land).

It is not clear from your query whether the drains are naturally occurring or whether the water was channelled by artificial means. Consequently, I will set out the law as it relates to both situations.

Natural rights of drainage under Common Law

In a situation where water naturally drains from one property to another (as opposed to artificially created drains), the owner of 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. If water on the higher land naturally passed onto the lower land, the owner of that lower land does not necessarily have a cause of action against the higher landowner in nuisance or trespass if the natural flow of water floods his lower lands.

However he can protect his lands by making a barrier even though this may cause damage to the higher landowner. However an action to pen back the water must be no more than is reasonably necessary to protect the lower landowners own enjoyment and he must not act for the purpose of injuring the higher landowner.

A lower landowner may however have a remedy in negligence* where the higher landowner 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 the lower landowner damage. For example if a stream is known to flood and if the risk of flooding to the lower landowner can be reduced – by the higher landowner cleansing and scouring the watercourse – the higher landowner will be in breach of duty if he does nothing at all.

The higher landowner can discharge his duty of care by telling his lower neighbours they are free to do the works – say for example they refused to do the works and then sued the higher landowner for negligence, the higher landowner could defend it on the basis that the works were expensive and he suggested they do their own works.

* Where a person has acted negligently and their negligence has caused you loss, you may be entitled to compensation from that person.

Easement in respect of water and drainage for artificial drains

If you or your neighbours created drains, it would appear that you or your neighbours have channelled water by artificial means and so you or your neighbours land may benefit from an easement across other lands.

To establish an easement in an artificial watercourse such as pipes, ditches or drains (as opposed to natural rights in a natural watercourse), the court takes into consideration

a The character of the watercourse, whether permanent or temporary.

b The circumstances under which it was presumably created.

c The mode in which it has been in fact used and enjoyed.

For example, where a drain was constructed through the lands of several landowners, the consent of each was necessary to its construction. Its construction was of equal benefit to each landowner. The circumstances are such that each would have a right to use it so long as it continued to exist. Thus after 20 years enjoyment, each would have acquired a prescriptive right to the flow.

Where a prescriptive right to discharge surface water across adjacent property by a specific channel has been acquired, the obstruction of the channel by the owner of the land over which it crosses is a breach of those prescriptive rights. So if you were to block the drains on your land which would cause the flow of water to back up, you may be deemed to be interfering with your neighbours prescriptive rights.

The nature and extent of a prescriptive right of drainage was considered by the High Court in the leading Irish case of Callan vs McAvinue, a case memorable for featuring a swimming pool in Termonfeckin.

Waste water from the defendant’s swimming pool and kitchen, together with his septic tank effluent, was discharged by pipe into a branch of a stream. The stream ran dry so the effluent lay stagnant on the plaintiff’s lands.

The court held that the defendant, the owner of the swimming pool, had acquired an equitable right to discharge properly treated effluent onto the lands of the plaintiff’s property, but it did not extend to a right to create a nuisance. However, the court was satisfied on the facts that the discharge did create a nuisance by the offensive smells created by the watercourse.

It is worth discussing all this with your neighbouring landowner.

A landowner whose land has flooded due to the blocked drains may have a remedy in negligence against the landowner who caused that flooding. A higher landowner has a 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 the lower landowner damage. Compensation for loss of income would generally have to be reasonably foreseeable in order to be recoverable i.e. the person who caused the damage would have foreseen that their actions would have resulted in that loss of income.

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. Email aisling@agrisolicitors.ie