The Ohio General Assembly has provided a mechanism for groups of landowners to equitably share the costs of change when a procedure to improve drainage is followed, as set forth in the Ohio County Ditch Law. The Ohio County Ditch Law provides that upstream landowners may be assessed to help pay the cost of channel improvement necessary to discharge the accelerated flow due to manmade causes (Section 6131.01 ORC). An assessment is possible only when a petitioned improvement is being carried out as provided by the Ohio County Ditch Law. (The Ohio County Ditch Law assessment procedure was recently tested and upheld in an Ohio district court of appeals, and the U.S. Sixth Circuit Court of Appeals in Kunkle, et al. v. Fulton County Board of Commission' ers, et al. 4, January 1991.) However, in most situations, a landowner must utilize the courts to collect for damages caused by either upstream or downstream drainage alterations.
Legal controversy frequently arises when damage is caused by a watercourse overflowing onto a lower landowner's property. Traditionally, Ohio courts have held that the upper landowner is not liable if the overflow is from a natural watercourse. In 1964, the Ohio Supreme Court held in Munn v. Horvitz 5 that "upland owners may place flowing surface waters in a natural watercourse at such increased rate as the upland owners desire, so long as no additional waters from outside the watershed are included in such flow, without incurring any liability from downstream owners." Munn v. Horvitz involved a private landowner and the construction of a municipal storm sewer in the city of Mayfield Heights. However, an appellate court ruled in 1968, in the case of Johnston v. Miller 6, that an upper landowner incurs liability if he/she collects water by artificial drainage (such as tiles and pipes) and then discharges it into a watercourse in quantities that exceed, and at points that differ from, the natural drainage flow, even if his/ her actions are reasonable.
The Munn v. Horvitzs decision was modified in Masley v. Lorain 7, a 1976 case involving a municipal storm sewer in the city of Lorain and four property owners. The Ohio Supreme Court held that "the construction and operation of a municipal storm sewer so as to cause material damage to a downstream landowner, as a result of flooding from rains or other causes which are reasonably foreseeable, is a direct encroachment upon that land which subjects it to a public use that excludes or restricts the landowner's dominion and control over his land, and such owner has a right to compensation for the property taken under Section 19, Article I of the Ohio Constitution." The two important phrases in the decision are "cause material damage" and "are reasonably foreseeable." In this particular case, the city of Lorain had used Martin Run Creek as part of its storm sewer system. An engineering firm had recommended to the city that stream improvement to Martin Run Creek was necessary downstream from the storm sewer outlet to carry the increased water flow. The city of Lorain did not follow the recommendation.