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.
“I have a drainage easement (swale)running the back 20 feet of my property. Because of the overwhelming water we have been recieving, the “swale” is causing the water to pond, and as a result, my backyard is collapsing rapidly, and my basement is flooding during heavy rain. I had an engineer out to confirm the swale was the cause of the collapse and flooding, and he told me that the only way to fix the problem is to have the swale “re-graded” in my property as well as several neighboring houses. Is there any legal recourse for me to get the “owners” of the easement out here to fix the problem, or am I on my own? (I am not sure who holds the rights to it, probably the county or township, but it was put in by the builder 20 years ago. I believe I can find that information out by checking the recorder of deeds.)”Your instinct is correct: The first thing you need to do is to find the document which created the easement and see what it says, and who owns it. That will most likely determine whether the owner of the easement has any liability to you.
Question: Normally, an easement owner has the obligation to maintain the easement (either in whole or in part), so if the problem can be traced back to faulty or lack of maintenance (check with your engineer on this), it’s possible that the easement owner might be on the hook for repairs. However, “public” easements are often subject to special rules, so take a look at the document before you jump into litigation.
Answer:
You should also look to see whether you are ALLOWED to make changes to the swale. Again, the document will probably answer this question.
