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Buachaill
Buachaill, Lawyer
Category: Republic of Ireland Law
Satisfied Customers: 8434
Experience:  Barrister 17 years experience
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hi there, my family live in a house which borders a field

Customer Question

hi there,

my family live in a house which borders a field owned by a farmer.
the house and plot of land it is built on was previoulsy farmland owned by another farmer. the house was built about 3-4 years ago.

the land is divided by a raised ditch (hedgegrow, clay etc) and has a drainage ditch on my side of the border and a small drainage ditch on his side but water from his field drains into the drain on my side. the land naturally slopes towards my land hence in extreme rainfall the drain on my side overflows (with water from his field) and this leads to flooding on my side.

the actual dividing ditch in some cases is about 2 to 3 feet high (which is ok) and in some parts almost flat (wate can overflow).

can i make the flat parts of the dividing ditch higher (same height as the other parts)

what are my legal rights regarding water from his field flowing into mine?
Submitted: 1 year ago.
Category: Republic of Ireland Law
Expert:  Buachaill replied 1 year ago.

Buachaill :

1. At the outset, you can make the flat parts of the dividing ditch higher. Essentially because this dividing ditch is a common boundary, you are entitled to ensure that it clearly divides your field from his. This allows you to make the boundary as high as is necessary. Secondly, liability does attach to an owner of land who lets water flow from his field into a neighbours, following the decision in Leakey v. National Trust. This applies even in cases where this is the natural flow of the water owing to this being the slope of a hill, as is the situation in your case. Accordingly, I would suggest at the outset that you speak with your neighbour about providing better defences against flooding of your land, such as by deepening the drain on both sides of the common boundary. However, be aware that where flooding is a natural consequence of land not being free-draining and low-lying, a court will not seek to impose liability on an owner of land, as this is an irremediable situation where courts do not like imposing liability. Accordingly, I would suggest that you seek to deal with your neighbour in a friendly neighbourly manner and not seek to resort to law, as the law is a crude solution which may not give you the result you want.

Buachaill :

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Customer:

thank you for that answer.

Customer:

i have already spoken with my neighbour and basically his argument is it's "flow of the land".

Customer:

however i do stress that the water on his drain on his side of ditch is running into a hole through the dividing boundary ditch and into my drain (which i fear may overflow in times of excess rainfall). what i did not mention is that there is a bigger drain running parallel to the road and both our drains which are feeder drains (run paralell to each other on either side of the dividing ditch but are perpendicular to the bigger roadside drain) what i sugeested is that his drain which runs parallel to my drain should feed into the roadside drain (as mine does), but it does not as it feeds through the hole in the boundary and hence into my drain.

Customer:

basically a reasonable man would extend his drain by about 3 or 4 metres into the roadside drain and feed that, but alas no. with this bit of information surley the "irremediable situation" and land not being free flowing etc would not apply?

Buachaill, Lawyer
Satisfied Customers: 8434
Experience: Barrister 17 years experience
Buachaill and other Republic of Ireland Law Specialists are ready to help you
Customer: replied 1 year ago.

i would be grateful if you could clarify my reply.


thanks again.

Expert:  Buachaill replied 1 year ago.
2. At the outset, you need to realise that you cannot compel your neighbour to dig his drain into the bigger drain at the end of the land. What he does with his land is his free choice. Whilst I appreciate this will place extra burden on your drain which then becomes the sole outlet of water, as his drain drains into yours, you would have to show an actual nuisance in law before you would get a successful legal remedy here. A nuisance in law will only be shown where there is damage to your land. A fear of overflowing is not sufficient. Accordingly, the time to strike is after there has been actual overflowing from his land into your land causing flooding. Then you should get pictures of what has occurred and sue him for nuisance. Get an engineer to come out when the flood has occurred and to prepare a report which can then be used in court proceedings claiming nuisance against your neighbour. Timing here is everything. It is not sufficient merely to suggest a risk of overflowing. YOu need to be able to point to actual damage which has occurred & then sue.
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Customer: replied 1 year ago.

thank you for clarifying issues for me. as all i want is to protect my property and not cause any trouble.


 


just 1 more question, in realtion to the hole or drain that leads the water from his drain entering my drain, this hole or drain is through the natural land boundary. could i block this from my end and this would prevent water from his drain entering my drain?

Expert:  Buachaill replied 1 year ago.
Yes, you could block the drain if you wished!

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