Three separate rules of law have been developed and applied by Ohio courts over the years to determine the legal rights and responsibilities of landowners to dispose of excess water (Callahan, 1979; Wright et al., 1985). These are the common enemy doctrine, the civil law doctrine and the doctrine of reasonable use. The discussion on the common enemy and civil law doctrines that follows is intended to provide the reader a historical perspective on past court decisions that led to the present application of the reasonable use doctrine.
The common enemy doctrine, which generally has been applied to urban areas, gives an individual landowner the unqualified right to dispose of water. The underlying theory is that these waters are the common enemy of man to be fought off by each property owner as he/she sees fit. If one follows this theory, water could be disposed of without regard to the consequences to adjoining landowners.
The civil law doctrine, which in the past generally applied to rural areas, requires the lower landowner to accept the natural water flow, but prohibits the upper landowner from changing the natural drainage, thereby increasing the burden on the lower landowner. The underlying principle is that lower lands are servient to upper lands with respect to receiving the natural flow of diffused surface water.
Ohio common law defines surface water as water diffused over the ground and derived from falling rain and melting snow; the water retains its status as surface water until it reaches a well-defined channel in which it merges with other waters. At this point, surface waters become part of the running waters of a stream and cease to be surface waters (Crawford v. Rambo 1). The term diffused surface water, simply stated, is water spread over the ground surface; it is not concentrated in a well-defined channel.
Although Ohio courts had adopted the civil law doctrine for application to drainage of surface waters of rural lands, they held that it did not apply to urban areas. Since the Franklin County Court of Appeals decided the case of Lunsford v. Stewart 2 in 1953, many courts have applied the reasonable use doctrine to reach decisions related to surface water drainage in urban areas. Lunsford v. Stewart involved an urban landowner who filled and built structures on his city lot that diverted the natural flow of water from the adjoining lot. The judgment in Lunsford v. Stewart was based in part on the reasonable use doctrine. Earlier Ohio courts generally applied the common enemy doctrine for "city" drainage, but this rule had not been applied in all cases.
As Ohio has undergone the strains of urban and rural development, the courts have adopted many modifications and exceptions to the civil law and common enemy doctrines. In addressing the problems of applying these two doctrines, the court's reasonable use doctrine has evolved to provide flexibility and practicality to application of Ohio's drainage laws. The reasonable use doctrine essentially provides that an acceleration or an obstruction of surface water flow should be examined to determine whether or not the change is "reasonable" in the particular case. In 1980, the Ohio Supreme Court applied the reasonable use doctrine in the case of McGlashan v. Spade Rockledge Corp. 3 The high court defined the rights of landowners as follows: "A landowner is not unqualifiedly privileged to deal with surface water as he/she sees fit, nor is he/she absolutely prohibited from interfering with the natural flow of surface waters to the detriment of others. A possessor of land is legally privileged to make a reasonable use of his/her land even though the flow of water is altered, thereby causing harm to others." (McGlashan v. Spade Rockledge Corp. will be discussed further in a later section.) The reasonable use doctrine has been applied to a number of cases in Ohio since 1953. For more reading on the progression of Ohio courts toward application of the reasonable use rule, the reader is referred to interpretative summaries provided in the University of Cincinnati Law Review (1980) and Capital University Law Review (1980).