Mary Walker: Who's responsible for hidden drainage ditch?

GUEST OPINION: EASEMENTS

July 13, 2014 

As many of you know, when you purchase property, it often comes with easements. These easements don't seem to be of much concern, so you just go along merrily on your way and enjoy your homes and yards. That is, of course, until you find your easement is going to cost you a lot of money.

Last year, two nearby residents came to tell us their property was flooding. It had been determined the problem is a clog in the drain pipe that runs under our backyard in the easement.

The Ada County Highway District, which is responsible for drainage from roads, and the Nampa and Meridian Irrigation District tell us the drain is our responsibility. We didn't know it existed, and we don't use it, but it's ours.

The Irrigation District told us its handbook and Idaho law require us to fix the problem. A district employee brought me the handbook and a copy of the pertinent Idaho Code 42-1207, which appears to say an irrigation drain is the district's responsibility to maintain unless a landowner has made changes in the drain.

The employee said he was surprised to find the issue was not discussed in the "handbook." I was not surprised to find his interpretation of the code and mine do not agree.

It cost us about $400 to have the drain cleared last year. The problem apparently was caused by the roots of maple trees that were planted before we bought the house.

Our neighbors were flooded again this past spring. This time we paid $340, but the tree roots were too big to be cleared out completely.

We were told we needed to excavate our backyard and replace the drain pipe. It would only make sense to also remove the two maples and their roots. As you can guess, it would cost thousands of dollars!

The company that attempted to clear the drain this year tells us they have been called by others for similar problems and find themselves at familiar homes with new homeowners that have no idea this problem is ongoing.

The man who came to discuss the excavation project explained it like this: Once there were three farms. When Farm 1 was finished with the irrigation water, it was drained to Farm 2. Farm 2 sent the excess onto Farm 3. When Farm 2 was sold and subdivided, the water still needed to drain to Farm 3, so the drain was buried. The drains flowed through an easement.

Our property description says, "All lot lines common to public right-of-way line have a 5-foot wide permanent public utilities, drainage, and irrigation easement." The utilities have done work several times in the easement and never asked for a dime. The Irrigation District says the water in the drain isn't irrigation water, but drainage. ACHD says the water isn't coming from the roads. The agencies tell us that no one really knows where all the water goes. The irrigation system was established decades ago and was never really mapped out.

Since the neighbors who are flooding have worked hard to keep the water levels from getting to their buildings, we have had time to think this through. There is no question that something has to be done. But who pays and how much?

The really big questions: Does your easement include a drain, and who is responsible for it? We cannot sell this property without fixing this problem and telling potential buyers about it. This is a definite hit to the value of the property. Did the last owners know? Probably not. But there are those who know and they are selling their houses without telling the buyers.

If the water is "irrigation water," the Irrigation District would make the repairs. If ACHD used the drain in any way, it would do them. Since someone has decided this is "drainage" and not "irrigation" water, does that make this our responsibility to fix?

I think we need more than a bureaucrat's say-so.

Mary Walker is a retired resident of Boise.

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