We receive many questions regarding drainage rights and the potential use of drainage agreements. Written drainage agreements can be useful in any state where drainage is an issue; however, this article focuses specifically on the law related to drainage and property rights in Iowa.
Generally, Iowa landowners may drain their property in the “general course of natural drainage.” Landowners are allowed to drain land by constructing or reconstructing open or covered drains and discharging the drains in any natural watercourse or depression which carry the water to a natural watercourse. See Iowa Code §468.621. Courts in Iowa have held that drainage tile qualifies as a drain.
The Iowa courts have adopted a rule that recognizes a servitude of natural drainage between adjoining lands. The rule requires that a servient estate (the lower elevation land) must accept surface waters that drain thereon from a dominant estate (the higher elevation land). While the servient estate must accept natural surface drainage, the dominant estate cannot increase the amount or alter the manner of natural drainage if the servient estate will be substantially damaged.
This “natural flow” doctrine is subject to an overriding requirement to use ordinary care. If a drainage project “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 liable for the additional or altered drainage. Therefore, the owner of higher elevation land cannot drain water from their land onto that of a neighbor in any manner or method they choose. An alteration in the amount of water drained must not cause substantial damage and reasonable care must be taken.
There is no clear rule to determine what constitutes a substantial increase or change in the manner of discharge or whether reasonable care was taken. An Iowa court will look at all of the facts and circumstances in order to determine the reasonableness of drainage. The owner of the servient estate 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 the servient estate has suffered actual damage to the property. Thus, the owner of the dominant estate may drain onto the servient estate even though it might result in an increase in the amount of water being drained, it just can’t be substantial and result in actual damage to the property.
A dominant estate may obtain expanded drainage rights in the form of an easement. Likewise, it is possible for the owner of a servient estate to lose or limit his or her right to stop a dominant estate owner from increasing the amount or altering the manner of natural drainage. This can happen if there is an agreement or contract made that allows excess drainage (i.e. easement by express agreement), the drainage was established when the land was owned by the same person or entity and was later divided (i.e., easement by implication), or the drainage has been occurring for a period of years that exceeds the statute of limitations (i.e., a prescriptive easement).
Dominant estate owners may also lose their drainage servitude such that the servient estate may acquire an easement to turn water back onto the dominant estate. The Iowa Supreme Court has held that if a landowner maintains a barrier that repels the surface water from flowing from adjacent land for ten years or more, and with the knowledge and consent of the adjacent owner, the servient estate is no longer legally bound to allow the natural flow of water onto the property.
Consider a Drainage Agreement
Whenever a potential drainage dispute arises, it should be determined whether prior owners of adjoining property entered into a drainage agreement. Written and recorded drainage agreements run with the land in Iowa which means that subsequent landowners must comply with the terms of the agreement. If there is no existing drainage agreement between property owners and additional improvements to the drainage system are needed in the future, it’s always wise to enter into a written drainage agreement that can cover such things as:
Drainage system improvements;
Repairs and Maintenance;
Restrictions on additional drainage laterals or properties;
Limitations and/or notice for entering property; and
Responsibility for Crop or other property damage.
If you are considering a drainage project that involves one or more neighboring landowners and would like to discuss the benefits of using a drainage agreement, please contact us.
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