31-201. Drainage by landowner; to what extent allowed.

Owners of land may drain the same in the general course of natural drainage by constructing an open ditch or tile drain, discharging the water therefrom into any natural watercourse or into any natural depression or draw, whereby such water may be carried into some natural watercourse; and when such drain or ditch is wholly on the owner's land, he shall not be liable in damages therefor to any person or corporation.

Source

Annotations

1. Drainage on own land

2. Discharge on other land

3. Natural watercourse

4. Miscellaneous

1. Drainage on own land

Owners of land will not be held liable for damages to landowners downstream for draining waters into a natural drainageway that begins on the owner's property, as long as this is done in a reasonable and careful manner. Romshek v. Osantowski, 237 Neb. 426, 466 N.W.2d 482 (1991).

To relieve from liability, ditch or drain must be wholly on owner's land. Bussell v. McClellan, 155 Neb. 875, 54 N.W.2d 81 (1952).

Owner has right to discharge waters from a temporary pond or basin by means of an artificial channel on his own property in the natural course of drainage. Pospisil v. Jessen, 153 Neb. 346, 44 N.W.2d 600 (1950).

Drainage by landowner must be wholly on own land. Skolil v. Kokes, 151 Neb. 392, 37 N.W.2d 616 (1949).

Owner of land may dig ditches on his own land to relieve against seepage without liability for damages to adjoining landowners because of lowering of water table. Halligan v. Elander, 147 Neb. 709, 25 N.W.2d 13 (1946).

Owner has right to drain lagoons into natural drains on his own land, though same is then carried over other's land. Arthur v. Glover, 82 Neb. 528, 118 N.W. 111 (1908); Aldritt v. Fleischauer, 74 Neb. 66, 103 N.W. 1084 (1905); Todd v. York County, 72 Neb. 207, 100 N.W. 299 (1904).

2. Discharge on other land

A possessor of land may not divert water onto the land of another by means of a drainageway which did not exist in a state of nature. Jameson v. Nelson, 211 Neb. 259, 318 N.W.2d 259 (1982).

Waters which may be discharged hereunder without liability do not include waste irrigation waters in quantities which are injurious to neighboring land. Peters v. Langrehr, 188 Neb. 480, 197 N.W.2d 698 (1972).

Owner cannot cut channel across natural embankment and cause water to flow into basin partly on his land and partly on land of another to his damage. Yocum v. Labertew, 145 Neb. 120, 15 N.W.2d 384 (1944).

Construction of an open ditch enlarging a natural waterway will not be enjoined unless it is clearly shown that water normally carried will be diverted upon another's land to his damage. Miksch v. Tassler, 108 Neb. 208, 187 N.W. 796 (1922).

Owner cannot dam up natural drain so as to injure neighbor's land. Mapes v. Bolton, 89 Neb. 815, 132 N.W. 386 (1911).

Owners cannot collect and discharge surface water, contrary to natural drainage, upon another's land. Shavlik v. Walla, 86 Neb. 768, 126 N.W. 376 (1910).

The right of the upper proprietor to discharge water is not absolute; but the discharge must be done in a reasonable and careful manner and without negligence. Hickman v. Hunkins, 1 Neb. App. 25, 489 N.W.2d 316 (1992).

3. Natural watercourse

This section permits a landowner to divert water into a natural watercourse, which runs through his or her land, even if the water would otherwise never have reached the watercourse. Bierbower v. Hanson, 228 Neb. 716, 424 N.W.2d 132 (1988).

Under facts in this case, defendant obstructed waters that ran in the equivalent of a natural watercourse and plaintiff was entitled to injunction and consideration of issue relating to damages. Paasch v. Brown, 190 Neb. 421, 208 N.W.2d 695 (1973).

Proprietor of land cannot dam up and permanently obstruct a natural drain. Town of Everett v. Teigeler, 162 Neb. 769, 77 N.W.2d 467 (1956).

Where water is impounded by natural conditions, owner has no right to remove impediment to its flowage. Rudolf v. Atkinson, 156 Neb. 804, 58 N.W.2d 216 (1953).

Regardless of deed or contract, owner of land may exercise right to drain basin into natural watercourse as provided herein, and where such drain is wholly on owner's land, there is no liability for damages. Bures v. Stephens, 122 Neb. 751, 241 N.W. 542 (1932).

4. Miscellaneous

When a landowner substitutes a permanent artificial drainageway crossing his or her own land for a natural one obstructed by that landowner, the landowner impresses the artificial drainageway with a servitude in favor of the land drained thereby, and the upper proprietor (the owner of the land drained) may enforce this servitude against the substituting landowner and its successors in interest; the mere fact that the land through which the easement runs is later subdivided does not destroy the easement. Nu-Dwarf Farms v. Stratbucker Farms, 238 Neb. 395, 470 N.W.2d 772 (1991).

The protection afforded a defendant by this section is not absolute. A defendant can still be held responsible if plaintiff alleges and proves defendant acted negligently or without reasonable care. Stuthman v. Adelaide D. Hull Trust, 233 Neb. 586, 447 N.W.2d 23 (1989).

Alteration of natural drainage is acceptable where interests of good husbandry are served, circumstances are such that the alteration is necessary, and the particular alteration is reasonable under all the circumstances present. Bohaty v. Briard, 219 Neb. 42, 361 N.W.2d 502 (1985).

Construction of ditch from natural lake was not authorized. Lackaff v. Bogue, 158 Neb. 174, 62 N.W.2d 889 (1954).

This section does not control the drainage of natural lakes covering an area in excess of twenty acres. Lackaff v. Department of Roads & Irrigation, 153 Neb. 217, 43 N.W.2d 576 (1950).

City discharging water from its sewage disposal plant into a gully or creek for a period of over ten years, in open, notorious, peaceful, uninterrupted, and adverse manner, may acquire an easement for that purpose. Hall v. City of Friend, 134 Neb. 652, 279 N.W. 346 (1938).

Evidence in case did not bring it within provisions of above section. Warner v. Berggren, 122 Neb. 86, 239 N.W. 473 (1931).

When drainage districts are organized under this article and statutory notice is not given to mortgagees of record, special assessments are subject to liens of mortgages. Board of Commissioners of Hamilton County v. Northwestern Mut. Life Ins. Co., 114 Neb. 596, 209 N.W. 256 (1926).