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Last modified
1/26/2010 10:08:50 AM
Creation date
10/5/2006 4:11:21 AM
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Floodplain Documents
County
Statewide
Basin
Statewide
Title
General Principles of Drainage Law Outline
Date
1/15/1980
Floodplain - Doc Type
Educational/Technical/Reference Information
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<br />In addition to negligence, other legal theories tave been used to <br />impose liability on municipalities for faulty construction and main- <br />tenance of drainage improvements. Thus, a municipElity may incur <br />liability for trespass, Barberton v. Miksch, 128 Ohio St. 169, 190 <br />N.E. 387 (1934) (casting water upon the la~d of another by seepage <br />or percolation resulting from the construction and maintenance o~ <br />a reservoir was a trespass by municipality); an un<:onstitutional <br />taking, Mosley v. City of Lorain, 40 Ohio St. 2d 334, 358 N.E. 2d <br />596 (1976), (city had effectively appropriated the plaintiffls pro- <br />perty by cons truc t ing a storm sewer s ys tern which channe lIed a grea te r <br />volume of water into the creek than the creek could reas:mably be <br />expected to handle without flooding); Lucas v. Carr~, 167 Ohio St. <br />416, 149 N.E. 2d (1958) (construction of a public i~provement on <br />county property, which greatly i'creased the amoune and force of <br />surface water which flowed onto the plaintiffls property overflowing <br />and inundating it, raised a claim of E.ro tanto app~opriation); or <br />nuisance, Mansfield v. Bolleet, 65 Ohio St. 451, 63 N.E. 86 (1902) <br />(municipality is liable if it causes drainage to be emptied into a <br />natural watercourse a~d substantially damages a lower landowner). <br />Even in the absence of negligence, nuisance, trespass or taking, <br />the evolving doctrine of inverse condemnation is being used to permit <br />landowners to obtain compensation from a municipality where storm <br />runoff from municipal projects are diverted across another's la.d <br />on the theory that the city has taken a drainage easement. Thus, <br />like an easement for noise emanating from the municipal airport, <br />physical entry by the govern~ental entity or statutory allowance <br />of compensatory damages is not required in order for landowners <br />to recover. <br /> <br />In several Colorado cases, however, municipalities have not <br />incurred liability for faulty constructio~ where they are found <br />to be upper proprietors with a natural easement for drainage - even <br />when water is sent down in a manner or quantity to do more harm <br />than formerly. City of Englewood v. Linkenheil, 362, P.2d 186 <br />(1961) (city's action in channelin~ water by systEm of drains, catch <br />basins, intakes, and pipes, from higher place to place contiguous to <br />land of plaintiff, which was a natural drainage area, so as to over- <br />flow onto the land of plaintLff did not constitute a taking of pro- <br />perty without just compensation); City and County of Denver v. <br />Stanley Aviation Corporation, 143 Colo. 182, 352 p.2d 291 (1960) <br />(plaintiff could not recover from city for damage caused by flood <br />waters which backed onto lower land on theory that city had bee0 <br />negligent or failed to use due care in installing a pipe adequate <br />to carry the waters); Aicher v. Deover, 10 Colo. App. 413, 52 P. <br />86 (1897) (city not liable for damage where street grade was cha~ged, <br />trolley tracks permitted iG street, a culvert built too small, but <br />landowner declared to be in the unfortunate position of having built <br />below the grade of the street). <br /> <br />(4 ) <br /> <br />1-15-80 <br /> <br />- <br /> <br />- <br /> <br />~ <br />
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