Very few of the cases mentioned above dealt with agricultural drainage systems within farm fields. Concerns often arise when subsurface drains that were constructed by mutual agreement need maintenance or reconstruction. The following describes a case where an existing subsurface drainage system needed repair.
A landowner wanted to replace a 5-inch tile that drained a portion of his/her property with a 6-inch tile to meet current drainage criteria. The 5-inch line crossed a downstream owner's land a distance of 250 feet to an open ditch. No written easement had been secured and recorded for the original 5-inch tile. The original tile had been in place for more than 50 years, but no agreement could be reached by the two landowners to allow its replacement with a 6-inch tile. The issue was taken to the township trustees as provided in Section 6139.06 of the ORC. The trustees approved the change and awarded $150 in damages to the lower owner. (Section 6139.06 was reappealed effective April 9, 1981.) In 1977, a court of appeals heard the case as Wilkins v. Sitterley 12 and found no proof that the subsurface drain was conducive to public welfare, and the showing of such proof is required by the statute. The court held that the prescriptive easement right created by the existence of the 5-inch tile at its present location for a period of 50 years gave the upper owner the right to repair and maintain the 5-inch tile in its present size and location subject to damages to the lower owner, but it could not be enlarged. A prescriptive easement is simply the right to use another's property that is not inconsistent with the owner's right and that is acquired by a use that is open, notorious, adverse and continuous for the statutory period (Black, 1979). According to Ohio case law, the minimum period required to acquire a prescriptive easement is 21 years.