Who should be maintaining drains?

Garnet

Member
Hi All

Our 4 acre property (wales) holds the main house for the farmland around us and was split off from the farmland 25 yrs ago, when the owners son bought all the farm land from her.
The main driveway on the property to the old house now serves all 3 houses on the property ,but is not owned by us, but by the son who owns all the farmland.
There is a pond on his land, to the right side of the driveway, and it has been there for years as it is on the old maps.
It receives all the surface water runoff from all of his land by way of hidden pipes lying under the ground (old victorian ones- no one knows where any of them come from or go to) so it fills up in winter and the level is lower in summer.

He is selling his property, and the driveway was in appalling condition, so a year ago, he got the old tarmac chewed up and rollered back down int a compacted dirt drive surface to look better for sale.
Before that, water was bubbling out from the road surface all the time, and after it was "fixed" it was not.
We were away at the time and came home to find that on our side of the drive (the left) where there is a lawn strip and an old yew hedge, the he had been "digging", and that he had uncovered a drainage inspection chamber (approx 40x40) that had been previously filled in with compacted dirt and with lawn grown over the top.
It has always been like that, for the 8 yrs we have owned the property.
Not only did he dig there, and leave a dirt berm on our lawn on either side from that, but he also dug a trench under and through our hedge, because once he dug out that inspection chamber, water drained through pipes from his pond filled it up quickly and it overflowed, and not wanting the water to flood down his driveway and damage the surface, he decided to dig a trench and send it all over to our property, which has flooded our woodlands foot deep, washed away our vegetable garden and then flows over our septic soakaway through our field, has rotted the grass and waterlogged our field and then flows onto the public road like a waterfall off the end of our field.

So being decent neighbours and wanting to appeal to his good side and not wanting to rock the boat, we went over to speak with him and alert him to the issues that his little digging trespass had caused to us. He acted surprised, but said he has no idea there were victorian clay pipes running out of his pond, but they had broken under the drive (causing the water flowing out of the surface) and when he had the drive fixed, he replaced that pipe, and found the inspection chamber so dug it out to see if he could free up that drainage route again.
His family has owned all the land for around 60 years and none of them knew of its existence to maintain it.
He had the pipe on our side of the drive jetted, but they couldn't unblock it, not unsurprisingly, as it has decades of silt and crap washed down it, and that they needed to jet it from the bottom, but no one knows where that might be anyway. We know the pipes follow our hedge down the side of the drive and turn right into our field entrance, because he also dug a big trench in our field driveway without asking a year ago and has left it in that condition with the pipes exposed.
Where they go from there is anyones guess, but ours is that they go across our field, pass under the road at some point and drain into the basin of the valley, which now belongs to another farmer (but was probably all the same ownership at the time it was installed 100 yrs ago.)
He said he would sort it, but a year has passed with lots of "friendly conversations" on our side to enquire on what his plan is, and now he's done a you turn and said that "The pipes that are blocked are on your side of the drive so your responsibility to maintain!

The pipes ONLY serve to drain his pond- they do not serve our property at all, as we have no standing water that we need to drain) and my understanding, and what the solicitor has told us, is that he is the dominant owner of those pipes that serve his land, and we are the servient owner, so must allow him access to maintain and repair his drainage pipes with permission, but that we are not responsible for repairing his his ancient drainage pipes that don't even serve our land.
There is nothing on either of our deeds mentioning these drains, but seeing as they're old victorian drains, they've predated all of us.

I said to my neighbour that I would speak to the purchaser of the new property (my friend FIL) about the issue as he needed to know about the dispute and he said go right ahead.
He said he had seen the issue (but didnt know of a dispute) because he was there the day the owner dug up the drive and all on our property, and he ageed it was ridiculous that we were being flooded and was not our responsibility to maintain the drains to his pond and he said the current owner is just as tight as a fishes a*s and didn't want to spend a penny so was trying to avoid responsibility- leave it with him, he'd talk to him about sorting it before he would buy the property, as he didn't want to be shouldered with the problem himself.
However, it is a year on and the sale still hasnt gone through yet as the farmer lost a number of the deeds to the fields which has held things up and we are now being inundated with water again.
I am totally fed up with being polite and patient about it while our property is repeatedly flooded by a large volume of water, and the solicitor told us to stop waiting about and take measures to protect our property and sand bag it so the water cant flow across it.
So we told him this was our advice and that is what we would do come friday.

He has not only dug 4 trenches on our property to direct the flow across our land, but he has also used sandbags to make sure every scrap of water goes to us and not his drive and even built up dirt berms with his hands on the drive.

So last night we sandbagged it and suddenly his drive looks like a river and its inundating the public road- and I think he will be hopping mad.
he's unreasonable, shouts and tries to intimidate, even though we've never raised our voice, yet would have every right to do so given how he's behaved.

We've got a guy coming out from the council to take a look next week, but its virtually impossible to clearly find out in black and white who must repair this.
He insists it's us now, and from everything I have read on the subject, and from what the solicitor has advised, we believe that as these pipes solely serve his land with no benefit to us, they are therefore his duty to maintain so his land continues to drain without causing a flooding risk to others.
Our land is servient to his drainpipe running across them, but he is responsible for maintaining them in good order.

If he isn't reasonable and doesn't take action to stop this water trespass the solicitor said the only way to force him is via an injunction, but that is upwards of £20,000, and who wants to have to get legal with a neighbour in order to persuade them to do the right thing? We certainly don't want to go there!
I just want the responsible party to deal with the situation, and I don't believe that we are the responsible party?

From what you know about how this all works, what are your thought on the matter and how to resolve it?
 

teslacoils

Member
Arable Farmer
Location
Lincolnshire
Have you considered digging an attenuation pond / soakaway on your property? Yes, I know but if the old stuff was put in before anyone remembers it was always going to fail one day. And then you will be masters of your own destiny? Obviously I don't know the lie of the land but it may be possible to route the old main pipe from your drains into your own attenuation pond. Few days with a digger. Easy peasy. Plenty less than 20k. It's going to be tricky to sort without deeds, easements, solicitors, or even folk who know the route of ancient drains. So future proof it, if possible, by having all your stuff within your own boundery. Because if there is a dispute then you will be obliged to mention it if / when you sell your property, and any buyers may see having self contained drainage to be desirable.

Just an option.
 

Garnet

Member
Have you considered digging an attenuation pond / soakaway on your property? Yes, I know but if the old stuff was put in before anyone remembers it was always going to fail one day. And then you will be masters of your own destiny? Obviously I don't know the lie of the land but it may be possible to route the old main pipe from your drains into your own attenuation pond. Few days with a digger. Easy peasy. Plenty less than 20k. It's going to be tricky to sort without deeds, easements, solicitors, or even folk who know the route of ancient drains. So future proof it, if possible, by having all your stuff within your own boundary. Because if there is a dispute then you will be obliged to mention it if / when you sell your property, and any buyers may see having self contained drainage to be desirable.

Just an option.
Those drains drain all of his land.
They don't serve our land at all, it just runs across ours and they have been blocked for AT LEAST 8 years, not working, and long before that, as it takes alot of time for so much silt to build up in them that the inspection chamber is compacted with dirt and over grown by lawn by the time we bought it.
If we built a pond to take all his excess drainage, it would overflow in now time as it would have nowhere to go from there.
We're on a hillside, and overflow of a pond on our field would flood neighbours houses on the other side of the road, so i doubt we would get permission to build one even if we could.

We already have our own self contained drainage, for our storm water runoff from the roof etc.
Our property is built with a high wooded berm behind it, so no water from uphill would ever run over our land, unless it's deliberately routed that way, as he has done via his "trenches" off his drive onto our property.

He also has acres and acres of land that he can route the drainage for his pond and fields over plus a water course on his land he could discharge it to, and at the time of the initial flooding last year, he had already dug a trench to take new pipes for his bungalow and other building he was renovating across to that watercourse, as he had to split his water supply off from this original house (ours) that he'd been taking his water from, for the sale, so we suggested at the time that he could take the drainage pipe going from the pond, into the new pipe trench, only about 10 metres from his pond, at the same time and get permission to discharge it to the watercourse, and then all his drainage problems would be solved, without even having to do anymore work but just to reroute new pipe, but he refused to entertain that and just closed up the trench and left the water flowing over our land.

We want to do a vineyard in our field, so having a big pond collecting his runoff, apart from the flood risk to other neighbours below, is not really an option there.

And can i ask, if you dig in the ground on any old property, you will find old pipes that are no longer in sevice fro decades back.
People usually don't remove them then they fail- they just reroute.
We've got some victorian pipes on our own property no longer even connected to anything, some with the ends just sitting on the surface of a downwards slope now.

Does there come a point where something has been derelict and unused for so long that someone can't just happen across it and then claim the right to use it again?
He told us himself he never even knew it was there and had never maintained it, and its been 60 yrs since they first bought the property.
 

Phil P

Member
Arable Farmer
Location
North West
This is just my personal opinion but I was always told you have to accept water from above, so if it’s an existing water system running through your property you have to accept and maintain the water coming down it as once the water is in your property it’s then yours!
However I’m not a legal expert by any means but I believe it is an offence to restrict an existing drainage system. If it’s a new drain it’s a completely different matter.
Whenever I’ve bought land the drains running through it have become MY responsibility not the previous owners and not my neighbours!
If there’s been an issue on a boundary I’ve usually come to an agreement to split the costs with the neighbour.
If you have an existing drain running (or not as the case my be) through YOUR land get someone in get it sorted stop moaning about it stop passing the book. If your lucky you could come to an agreement to split the costs.
We have stone drains that have been in for hundreds of years and never been seen, if there’s a problem we still fix it! I wouldn’t be able to call the previous owner to complain.
 
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teslacoils

Member
Arable Farmer
Location
Lincolnshire
Sorry, I misinterpreted. Yeah, it would be best for him to renew and reroute the lot. The not knowing where pipes go is to me the big problem. But it all wants sorting via the "cup of tea, leys decide what to do" method as the legals will suck up all the money in the entire world. Mutually acceptable land agent who can visit site. Get a plan, shake hands.

It sounds like

1) there is an existing system.
2) it's old and probably jiggered.
3) it needs replacing or renewing.
 

Garnet

Member
This is just my personal opinion but I was always told you have to accept water from above, so if it’s an existing water system running through your property you have to accept and maintain the water coming down it as once the water is in your property it’s then yours!
However I’m not a legal expert by any means but I believe it is an offence to restrict an existing drainage system. If it’s a new drain it’s a completely different matter.
Whenever I’ve bought land the drains running through it have become MY responsibility not the previous owners and not my neighbours!
If there’s been an issue on a boundary I’ve usually come to an agreement to split the costs with the neighbour.
If you have an existing drain running (or not as the case my be) through YOUR land get someone in get it sorted stop moaning about it stop passing the book. If your lucky you could come to an agreement to split the costs.
We have stone drains that have been in for hundreds of years and never been seen, if there’s a problem we still fix it! I would be able to call the previous owner to complain.
Its not a natural watercourse.
If it was, ofcourse we would have to accept it.
It is also not rain runoff naturally falling on the ground and running downhill- it has been channeled by the land owner and routed into a pond made on his land-
Under the statute, ( http://41todw2i37w9c74zg3ndz7xp-wpe...wp-content/uploads/2018/06/Water-Talk-TWM.pdf) "3. The tide of statute in this field has been swelled by the common law and, in particular, the established principle that an occupier of land’s right to drain water onto his neighbour’s is limited to water which has come naturally onto his land but which has not been artificially concentrated, retained or diverted. 1 In other words, it is limited to a right of ‘natural drainage’ onto lower land, which is “an incident of ownership of the higher land”. 2
4. However, the occupier of lower land is not obliged to receive water running off higher land; he may put up barriers or otherwise pin it back even though this may cause damage to the occupier of the higher land if what he does is reasonably necessary to protect his enjoyment of his own land. 3
5. Moreover, an occupier of land has no right to discharge onto his neighbour’s land water which he has artificially brought onto his land, 4 or water that has come naturally on to his land but which he has artificially, even if unintentionally, accumulated there.
5 Nor does he have any right by artificial erection on his land to cause water to flow on to his neighbour’s land in a manner in which it would not, but for such erections, have done. 6

This is not a natural watercourse.
 

Garnet

Member
You need to be very careful if you've diverted water that was flowing across your property and it's going onto a public highway, if anyone crashes or suffers injury/damage you may be liable
He's actually caused the flow onto the public highway by his actions.
All I have done is filled in the trenches he dug illegally on our land to force it to flow onto our land.
 

Phil P

Member
Arable Farmer
Location
North West
Its not a natural watercourse.
If it was, ofcourse we would have to accept it.
It is also not rain runoff naturally falling on the ground and running downhill- it has been channeled by the land owner and routed into a pond made on his land-
Under the statute, ( http://41todw2i37w9c74zg3ndz7xp-wpe...wp-content/uploads/2018/06/Water-Talk-TWM.pdf) "3. The tide of statute in this field has been swelled by the common law and, in particular, the established principle that an occupier of land’s right to drain water onto his neighbour’s is limited to water which has come naturally onto his land but which has not been artificially concentrated, retained or diverted. 1 In other words, it is limited to a right of ‘natural drainage’ onto lower land, which is “an incident of ownership of the higher land”. 2
4. However, the occupier of lower land is not obliged to receive water running off higher land; he may put up barriers or otherwise pin it back even though this may cause damage to the occupier of the higher land if what he does is reasonably necessary to protect his enjoyment of his own land. 3
5. Moreover, an occupier of land has no right to discharge onto his neighbour’s land water which he has artificially brought onto his land, 4 or water that has come naturally on to his land but which he has artificially, even if unintentionally, accumulated there.
5 Nor does he have any right by artificial erection on his land to cause water to flow on to his neighbour’s land in a manner in which it would not, but for such erections, have done. 6

This is not a natural watercourse.
Seems like you have all the answers, why are you here?

As I’ve said, personally I’d maintain an EXISTING drain running through MY land especially if it was causing a problem for a neighbour. I wouldn’t come on here just to bitch about it 🤷🏻‍♂️
 

Ffermer Bach

Member
Livestock Farmer
just jetted a drain (now running again), but it leads into a manhole, turns 90 degrees and off, that one is now not taking the increased flow, so as soon as my soaking clothes are dry I am off to jet that leg!

Told my son yesterday that I was in the bottom of a 10' manhole digging out silt, all he could say on the phone was "well, I am pleased that I wasn't helping you~!!!"
 

milkloss

Member
Livestock Farmer
Location
East Sussex
Might it be easier to try and agree what the best thing to do with the water is with him and then either go halves or pay for it yourself (this will probably be cheaper than the legal route). This would be irrespective of who’s land it goes through.
 

Garnet

Member
Might it be easier to try and agree what the best thing to do with the water is with him and then either go halves or pay for it yourself (this will probably be cheaper than the legal route). This would be irrespective of who’s land it goes through.
The farmer buying the land (that owns alot of the land around here, agrees that its the other guys responsibilty.
He also owns a ground works business, so does this for a living.
He knows the set up and lie of the land, so @Phil P I'm, not just "bitching about it".
The solicitor that did our conveyancing and knows the land layout also said it's his responsibility to fix, and he wouldn't say that if it wasn't, as he'll be the one fixing it if the vendor doesn't.
He told us last year to leave it with him and he'll make sure it's sorted before the wet season happens again and the flooding recurs, but the sale hasn't yet gone through due to other issues, so i guess we'll just talk to him again to work out how to proceed.

@Zebbedee The pipes are clay victorian pipes, not perforated land drains, so they can't accept water from above from our land. The land below owned by someone else where they're headed used to have drainage ditches, which are also marked on maps, but the farmer there filled them all in last year, so even if the whole pipe was dug up on our land and renewed, there's no where for it to go after it leaves our land now anyway.
 

Phil P

Member
Arable Farmer
Location
North West
The farmer buying the land (that owns alot of the land around here, agrees that its the other guys responsibilty.
He also owns a ground works business, so does this for a living.
He knows the set up and lie of the land, so @Phil P I'm, not just "bitching about it".
The solicitor that did our conveyancing and knows the land layout also said it's his responsibility to fix, and he wouldn't say that if it wasn't, as he'll be the one fixing it if the vendor doesn't.
He told us last year to leave it with him and he'll make sure it's sorted before the wet season happens again and the flooding recurs, but the sale hasn't yet gone through due to other issues, so i guess we'll just talk to him again to work out how to proceed.

@Zebbedee The pipes are clay victorian pipes, not perforated land drains, so they can't accept water from above from our land. The land below owned by someone else where they're headed used to have drainage ditches, which are also marked on maps, but the farmer there filled them all in last year, so even if the whole pipe was dug up on our land and renewed, there's no where for it to go after it leaves our land now anyway.
Clay and pipes where still in use until not that long ago! They are also as good if not better than plastic for pulling water and will last far longer as well, if thay are running under your ground they will be taking your water as well.

Again what are you hoping to gain from this thread other than voice your opinion if your going to dismiss everyone who doesn’t agree with you? You’ve obviously made your mind up on what you want to happen and by the sounds of it at willing to spend a fortune on solicitors etc rather than just getting on an fixing the drains under YOUR land.
 

puppet

Member
Livestock Farmer
Location
sw scotland
If the landowner downstream has filled in the ditches then that is surely contributing to your problem. Can you open up the drain at the boundary and let it onto his land?
 

Oldmacdonald

Member
Mixed Farmer
Location
Scotland
"The pipes ONLY serve to drain his pond- they do not serve our property at all, as we have no standing water that we need to drain)"

How do you know??

How do you know the blockage isn't just into your land, and the remainder of the drain is working perfectly well, draining field water from your land, keeping it nice and free from waterlogging?
 

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