Private property rights under threat The reform`s recommendations require a clear definition and justification of „benefits“. Request a review of the installation and easements of the drain. Anyone who has ever sold or bought real estate knows that there is more than just money involved in real estate transactions. The process of transferring ownership always involves a pile of legal documents and a glove of formal procedures. In fact, the United States is one of the safest places in the world to do business because its legal traditions ensure that home buyers know exactly what they`re getting when they deposit their money. However, this is not the case in Michigan when it comes to owning land along a creek. Since the lower half of the state was once largely swampy, almost all waterways may have been used or designated as a conduit to drain water from the swamps for settlers to cultivate. But most people don`t realize that their current county drainage commissioner can still think of their tree-lined, trout-filled stream as a drain, even though no one has thought of using it since the 1800s. Most modern landowners are also unaware that, since the creek can still be considered a „drain,“ any piece of paper bearing the signature of a long-lost landowner or a cursory reference to a nearby drain is still considered a drain easement on their property under current law.
A drainage easement gives drainage officers the power to extend, deepen or straighten the waterways that maintain them. But unlike typical rights of way, drainage easements acquired before 1956 (the vast majority) do not need to be registered on title deeds to be legal. A drainage officer must also not be able to show a homeowner the piece of paper or faded signature that gives him or her the power to roll through fishing holes, uproot trees and fences, and throw brush and dirt from the creek on private property without the owner`s permission and without benefit to the landowner. No review requiredThis significant exception to the ownership rule continues in this state due to a general water law called the Michigan Drain Code. This law, drafted at the turn of the century, continues to impose 19th-century drainage mandates on 21st-century landowners by granting government officials unchecked power over private property. Katy Jarrad and her neighbours at Grub Creek, a tributary of the Looking Glass River, know what it`s like to protect the family`s farmland from the drainage commissioner`s bulldozer. Sheriff`s deputies escorted Shiawassee County`s drain commissioner to their properties in 1997, assuming the drainage code stipulated that the pile of vague, unverified signatures he presented as evidence of historical easements was valid. Geoffrey Seidlein, attorney for the Michigan Association of County Drain Commissioners, says verifiable easements under the Drain Code are not necessary if the drain „visibly exists“ and has been properly „established“ under the law. „The assumption is that it`s a public drain and it`s inside a public easement,“ he says. This gives drainage officers the authority to take „enough land“ „on both sides“ of a waterway to do any work authorized under the drainage code, he says. The same is true for some former county roads, where local governments may hold historic, often unregistered, easements that still give them the power to cut down trees prized for road maintenance or widening, for example.
But a road is very different from a clear, calm stream winding through rural lots, says Sue Julian of the Michigan Drain Code Coalition. „If you`re on a road or near power lines and pipelines, it`s obvious that you live near a utility with a public right-of-way. If you are on a river, you do not know it is a drain, and the registrar cannot tell you. And even if this „drain“ may be „visibly present“ in the eyes of a drainage agent, it is often difficult to know if it was ever „legally established“. In Grub Creek, for example, the Office of the Commissioner of Drainage cites a failed attempt in 1943 to convert the Looking Glass River and its tributaries into an intercounty drain as a legal entity. However, the lack of solid evidence does not seem to bother the drainage commissioners. Debbi Kile, senior counsel for Consumers Energy, says the energy company regularly encounters purported drainage legal documents that wouldn`t stand up to a normal property audit. „Often there`s nothing recorded, or they signed something, but there`s no way to know it was the right person to sign, or if everyone who should have signed did,“ she says. „It was a problem,“ she says of the fact that drainage projects often force the company to give up its own acquired property rights to make way for dredging.
„We end up having a drain to the point where it cuts us off from one of our facilities.“ The clean, fishy stream that once flowed over Katy Jarrad`s third-generation farm is now a dirty drainage ditch because Michigan law denied her and her neighbors their typical property rights. The district drainage commissioner also charged a woman. Jarrad and more than 400 other residents for the cost of destruction. According to the Drain Code, local landowners are responsible for paying the financial and real estate price for land drainage. In summary, the Pendergrast Rule does not apply in a dispute between private landowners in a residential subdivision subject to restrictive agreements on surface water drainage rights. Therefore, the judgment of the court of first instance delivered on the basis of this theory must be set aside and the case referred back to the district court for a new hearing, so that the evidence of the restrictive agreement and the defendant`s actions can be examined in their true legal light. The judge then issued an order dismissing the plaintiffs` claims, stating that the city „has an easement by order.“ „The city`s use of these culverts and the resulting water drainage on plaintiffs` lands have been open, infamous, continuous and detrimental for over twenty years. The City has acquired a stormwater drainage easement by order that leads from these culverts to the applicants` property. Daley v. Swampscott, 11 vols. app. ct.
822, 827-828 (1981); Stein v. Perkins, 59 vols. app. ct. 265, 266 (2003).“ We live on a hill, so it walks past our driveway and down further down the sidewalk. The council gave him a month to drain, but now we noticed that he made a hole in the wall between our house and his to direct the water to our drive. Our drive will be damaged. Is there anything we can do? „We continue to understand that a drainage pipe needs to be installed at the back of our property, approximately 40 feet from the north boundary. Bernel Ltd (B) owned land with planning permission for the construction of nine houses which are to be drained onto neighbouring land owned by the Canal & River Trust (the Trust).
B was unable to reach an agreement with the Trust on permission to do so. An old pipe provided some drainage of the land on the trust grounds, so B claimed that she was entitled to the drainage on the ground that either: The High Court rejected B`s arguments. Before a riparian right could be claimed, the court had to be satisfied that the existing drainage systems through the old pipe could be considered a natural watercourse. On the facts, the court agreed with the trust that there was no natural watercourse and that there was no flow of water in a defined channel. There was insufficient evidence that significant amounts of surface water had been diverted through this pipe from the site to the Trust lands. In addition, reports have shown that surface water naturally seeps through the soil, with some runoff on Trust land, but this did not happen through the old pipe. 3. The prescribed servitude and its scope. The judge`s failure to discuss in more detail evidence of increased damage to plaintiffs` lands in the 1990s also raises questions about his conclusion that the city has a mandatory easement to drain rainwater through culverts under Mount Blue Street. [Note 7] If the evidence shows that, as a result of the events of the 1990s, the flow of water exceeded the flow for which the city had a regulated easement, the easement must be limited to uses that existed prior to those events.
See Shaughnessey v. Leary, 162 Mass. 108, 111-112 (1894) (the easement prescribed to use a drain for a sink does not include the right to use the drain for a water study). Although usage may change somewhat over time, „differences in usage may not be significant [,]“ Glenn v. Poole, 12 Mass. App. Ct. 292, 293 (1981), cited in Lawless v. Trumbull, 343 Mass. 561, 563 (1962), and „it is clear that normally one who begins with a trickle of water at the beginning of the twenty years, cannot acquire the right to flood his neighbor`s land with a stream at the end of this period, even if the river remains in the same place.
Fortier v.
