Note: The DearEsq free 'ask a lawyer' site is offered as a free informational service to the public and is not intended as legal advice. Laws vary from state-to-state, and in addition every situation is unique, and relevant facts may not be known. The answer to the question posed below may not apply to in your state or to your situation. For legal advice in your state and your situation you should consult with an attorney in your state who is familiar with the rules and laws in your state.
My question is about a piece of property I inherited from my aunt. A portion of the original parcel in question was sold to an individual who in turn sold it to several commercial companies and a Hardee’s restaurant was built on the lot closest to her house(approx 20+ years ago). Hardee’s built a retaining pond/ditch that borders the backyard of my aunt’s house. Due to a recent survey of the commercial property behind Hardee’s we discovered the drainage ditch is on our property. Since construction of the Hardee’s we have always had drainage issues – rivers of water running through yard. The drainage pond/ditch is also an eyesore with trash and debris scattered in it. Do we have any grounds to sue the Hardee’s owners in an attempt to get them to close this drainage pond/ditch and to collect a usage fee of this property for the last 20+ years?
This is a pretty complicated situation, and one in which you will need to consult with a local attorney to get anything approaching a useful answer. In order to accurately assess the situation, you first need to know whether the neighbor has any legal right to have this ditch here. Whether or not they did when it was first put in, they may have developed a right to continue by virtue of the creation of a prescriptive easement. Whether that has occurred is, in part, a function of local law, since different states have different time periods and slightly different rules for the creation of such an easement. Even if they don’t have a right to have the ditch there, it may constitute a nuisance, which would give you the right to require them to change the way they are using it, at a minimum. I would suggest, however, that you avoid litigation if possible. Consult with an attorney and get an opinion of what your rights are, and then see if (perhaps with the attorney’s help) you can come to an agreement with the neighbor. Only if that fails should you consider the litigation route.
