Drainage Easements: An Introduction
Texas drainage easements are a unique type of private easement that allow drainage of the surrounding property into a particular area, usually a low area, creek, waterway or pond. The landowner may wish to grant a drainage easement to a neighbor to allow the neighbor to drain surface water onto his land.
The drainage easement takes precedence are over the common law right of "surface rights" under Texas law and a drainage easement can provide a higher level of protection than is provided under Texas law to a similarly situated landowner. A typical drainage easement operates like this: it will define the tract of land along which the easement runs (the "Servient Tenement") , the area of the Servient Tenement that constitutes the drainage area (the "Drained Area") and the remainder of the Servient Tenement (the "Retained Area"). The right granted to the party benefiting from the easement (the "Dominant Tenement") is that the surface waters of the Dominant Tenement will drain across the Servient Tenement according to the engineering standards and specifications set forth in the easement.
Sometimes, the drainage easement will remedy a failed drainage system and require rebuilding a roadway or other improvement that is inadequate or poorly defined and needs to be constructed to carry water. The drainage easement will be for an ongoing period of time without regard for the statute of limitations.
Law Governing Drainage Easements
A range of legal statutes and regulations govern drainage easements in Texas. Chapter 49 of the Texas Water Code deals with drainage easements across real property. Under the code, a drainage easement is defined as "a right-of-way, servitude, or other interest which is imposed upon, or grants to an owner of property, which the owner of the right-of-way, servitude, or other interest requires, the right to enter upon the land of another to conduct, or have conducted, stormwater, floodwater, or sewage to or from the land of the owner of the right-of-way, servitude, or other interest under conditions which carry with it an obligation for the maintenance of any structure, ditch, drain, or facility so constructed or used." Tex. Water Code § 49.221(a). The statute goes on to provide that consent is given for the district to undertake to take over control of the drainage easement at the district’s request or whenever the district deems it to be in the best interest of the district to assume control. Id. § 49.221(e).
It is not uncommon for a drainage easement to appear in a deed or subdivision plat in which a developer conveys the rights to a drainage easement across property adjacent to developed or undeveloped property. Under such circumstances, both properties—i.e. the servient and dominant estate—exist under the same ownership, but any future development of the dominant estate may necessitate a reexamination by a surveyor to ensure that the previously conveyed drainage easement does not conflict with a new, proposed drainage easement. Likewise, if the dominant estate is sold to a new owner, the owner of the servient estate has an obligation to inform the new owner of the burden created by the easement.
No state or local agency issues drainage easement permits in Texas. Generally, the only permitting that occurs with respect to a drainage easement is that of the Army Corps of Engineers pertaining to floodplain issues for areas that fall under the jurisdiction of the Corps. However, in May of this year, the City of Austin passed a drainage utility fee ordinance that imposes different drainage utility fees based on the property’s impervious cover and service needs. Under the new ordinance (based on the amount of impervious cover), single family residential properties will be assessed $1 per month, whereas high-rise multifamily residential properties are evaluated at $8 per month. Under the new ordinance (based on service needs), properties in the 100-year floodplain face greater charges as well as a monthly $1 charge. Multi-family, commercial, and industrial properties are subject to specific charges based on service needs relative to average household runoff.
Property Owner Rights and Obligations
For property owners with easements on their property, the Texas Supreme Court has clarified their rights and obligations. These rights and obligations come tediously from a number of sources, including statute, common law principles, and the facts of the situation.
Obligations under either a common law or statutory easement: With regard to a statute governing drainage easements, for example, the landowner with the easement must maintain both the drainage ditch, as well as the easement for ingress/egress necessary to access the ditch, but only to the extent the landowner undertakes to use the ditch for a beneficial purpose. This means that a landowner can use the ditch for non-beneficial purposes without the obligation to maintain it, can maintain the ditch and be obligated to maintain it, or may not be obligated to maintain it at all if it only uses the ditch sporadically. On the other hand, a dominant estate holder has the duty to maintain the easement itself, and is estopped from claiming use of the easement for his own benefit if he does not maintain the easement.
Obligations under a common law easement: The rights and duties of parties arising from a common-law drainage easement are much more fact-specific, however. For example, when a landlocked property depends on an older easement for drainage, the draining property generally has the right to cross the easement in order to maintain the ditch, provided it does not interfere with the use of the easement by the other property owner.
Legal Issues Pertaining to Drainage Easements
In the world of Texas law, disputes over drainage easements are not uncommon. In fact, a large portion of property and even pipeline litigation results from easement disputes. The primary issue in virtually every easement dispute is the interpretation of the easement language. After that words, the parties will focus on the location of the easement. If, for example, the easement is for a specific width only, the owner of the servient estate (the one who owns the property with the burdened easement) will be most concerned with whether the other party (dominant estate) has latched on to more than its share of the easement. This can be tricky depending on the language in the easement, as well as the facts of the situation. These types of cases are very common. But landowners and their companies are also currently involved in disputes over easement implementation. For example, landowners might contest easement terms or conditions that the other party is trying to enforce after the easement has been granted. Or the parties might disagree on whether certain construction work is careless and therefore in violation of the easement terms. Landowners may also dispute whether the company has at all complied with the terms of the easement when building its pipeline. When disagreements arise, agreements between the parties can serve as the fall-back document. A good landman, however, will ensure that the company’s easement language is as clear and complete as possible. This will avoid the onset of time-consuming disputes that will eventually require resolution by unnecessary litigation. Mediation, whether with local mediators, JAMS, or JAMs Plus, is an effective tool and can be used in conjunction with litigation or even before litigation to get the parties to narrow issues or agree on discovery. Litigation obviously has its place, and the courts in Texas have shown remarkable deference to local governments, grantor’s rights, etc. Parties should be respectful of those distinctions. But in a large number of cases (and especially easement cases) the Texas surface damages statute can be applied to assess land damage based on the difference in land use before and after the project.
Effects of Drainage Easements on Property Value
It is not uncommon for servient parcel to have drainage easements benefiting adjoining parcels as a way to manage stormwater runoff and prevent flooding. For the most part, Texas drainage easements do not significantly impact property values, as noted in the case law. However, this is not universally true as there can be circumstances where they do.
When primary access is impacted. A drainage easement can even impact vehicular access. In 2016, the Texas Court of Appeals for the Texas Fifth District at Dallas addressed whether a drainage easement should be excluded from a property’s value because it would block primary vehicular access to the property , thereby diminishing its value. The court found that it would and reversed the jury’s award of damages for the property taken minus the value of the easement to be included in the calculation of the amount of compensation that should be paid to the landowner.
Where the cost of construction is high. It is not uncommon for drainage be a sizable easement across valuable property. Also, vacant land which will one day have infrastructure improvements, such as roads or drainage systems, might have no readily deductible easements of less than a quarter of an acre on the property.
Advice. Property buyers and sellers in Texas should consider having a drainage easement excluded from any offer or sales price for the property. However, care should be taken to not over reach on small easements, particularly those created by a recorded plat or when the easement is for the use of a utility.
Illustrative Drainage Easement Cases
Understanding Texas Drainage Easement Law: Key Insights
Examples of Drainage Easement Cases:
- Meyer v. Davis, 41 Tex. 62(1874): Originally a case involving a road easement, the Supreme Court of Texas held that where a landowner has granted an easement to another for a road, he is liable to repair the road when the land of the grantee is materially benefited. The mere use by the grantee alone of said road does not make the grantor liable to keep it in repair. In Meyer, there were no issues with the previous owners. After the land was sold to Meyer, the road became impassible. The only access to the property was through the original road. Of course, the Supreme Court of Texas did not reverse: "Our conclusion is, that the right of way in question is appurtenant to, and is an important part of the estate now being held by the complainant, and will be under all the circumstances to which we have been referred. It is not simply a license in favor of a piece of land in the hands of one person, which passes to a subsequent purchase; but it is a right attached to the land itself, as an incident to it, and passes with it without any reservation in the deed to Henry Meyer, under and by virtue of which the said land passed to complainant."
- Friend v. Faber, 559 S.W. 2d 864 (Tex. Civ. App. 1977): The court’s opinion is clear that the prior owner never completed improvements to drainage ditches. "We conclude at this stage of the record that the liability of appellee’s ancestors could rise above the level of a covenant running merely with the land only if the work undertaken in the easement would be considered as "improvements" rather than mere "repair."
- Weller v. Fortenberry, 229 S.W. 2d 359 (Tex. Civ. App. 1950): The Supreme Court of Texas denied a petition for a writ of mandamus in a drainage easement case. This decision is quite lengthy and contains discussion of many drainage easement cases. The court’s opinion does confirm that a landowner cannot use an express easement to do more damage to his servient estate than he could otherwise do. While this case does not cover every issue involving drainage easements, the reader can see some of the opinions of the Supreme Court of Texas on drainage easement law.
Guidelines for Drainage Easement Management
Maintenance of drainage easements is critical to avoid costly disputes between easement owners. First and foremost, property owners should be aware of the scope of the easement. Often times, drainage easements will appear in the Grantor’s deed (the persons conveying the easement) into a provision stating that "Grantors retain all rights to use and enjoy the servient estate under this easement." Property owners are advised to review their title documents and easements before making changes or improving a drainage easement.
Property owners should inspect drainage easements, culverts, and the surrounding areas to ensure that no obstructions, mud, vegetative growth or other things are blocking off a drainage cut or culvert. Any stones or debris inside a culvert or drainage cut should be removed on a regular basis . Further, trees and shrubs should be trimmed back and removed in order to maximize the capacity of the drainage ditch.
If possible, property owners should place markers along the easement so that property owners and neighboring landowners do not misplace the boundaries of the easement. This will prevent the property owner from interfering with drainage. Property owners should avoid blocking the natural flow of water across their property. In many cases, it may be necessary to obtain an engineering survey in order to make sure that you are not impeding water flow. However, if the easement owner impedes the flow of water to neighboring properties, then the easement owner may be held liable for the damages caused by the impeded flow.
If your property has an easement, consider the above information and contact a knowledgeable attorney to discuss the impacts on the value of your property.