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Drainage

Augusta Township has a long history of drainage issues and remedies. Some of the municipality’s drainage records date back to the late 1800s. An 1830’s map of the municipality shows a large area in the 6th and 7th concessions as the “Big Swamp”. Augusta Township was definitely an area that required drainage in order for agriculture to prosper.

 

kemptville creek, flooded near the roadside 

Surface Water Drainage

Drainage, both in its natural form and man-made, comes in many forms. Under English Common Law, no right of drainage of mere surface water exists as long as the flow is not in a defined channel. The owner of lower land may, by their own choice, either allow water from higher land to flow over it or keep such water off their property by dams or banks.

 

Natural Watercourses

Once surface water is gathered into a defined channel it is considered a natural watercourse. The holders of lands that abut a natural watercourse are referred to as riparian owners. A riparian owner is not only entitled to have the water of a stream passing through their land flow to them in its natural state, so far as it is a benefit to them, but they are also bound to submit to receive it so far as it is a nuisance to them by its tendency to flood their lands. To learn more about surface water and natural watercourse rights refer to the factsheet “Top 10 Problems Between Rural Neighbours” produced by the Ontario Ministry of Agriculture and Rural Affairs. OMAFRA also has information with respect to “Drainage Problems With Your Neighbours”.

 

Private Drains

A private drainage system is constructed by a property owner to resolve their own drainage problems. These systems are Beaver Damusually a ditch, buried pipe or grassed waterway, and collect or concentrate surface water. Roadside ditches are another form of private ditch. Property owners have no right to drain their private ditches into a  roadside ditch without the agreement of the municipality. Whatever form ditches take, they must be taken to a “sufficient outlet”, whether on the landowner’s own property; to a natural watercourse that abuts their property; or to a municipal drain (see below). Whatever route is chosen, the property owner needs to contact environmental agencies (Ontario Ministry of Natural Resources and Forestry, local Conservation Authority) to ascertain if any authorizations are required. Any drainage work within 120 metres of a Provincially Significant Wetland (PSW) will require conservation authority approval and may require a wetland impact study.  No development (i.e. drainage) can be undertaken in the wetland itself.

 

Award Drains

If the ditching needs to be undertaken on two or more properties, provincial legislation over the years has allowed for a number of approaches. Under the Ditches and Watercourses Act (repealed in 1963 after almost a hundred years) the work of constructing ditches across multiple properties was “awarded” to persons along the ditch. These Award ditches are still in effect today although obtaining copies of the agreements may be difficult. As with private drains, property owners wishing to repair or maintain an award drain need to contact environmental agencies (Ontario Ministry of Natural Resources and Forestry, local Conservation Authority) to ascertain if any authorizations are required.

 

Mutual Agreement Drains

The Drainage Act, 1975, allows for two or more owners to enter into a written agreement for the construction, improvement, financing and maintenance of drainage works. The signed agreements may be registered with the municipality and/or the local land registry office. The agreement is binding on subsequent owners of the land that is the subject of the agreement. There are a number of advantages and disadvantages to using a mutual agreement drain process. As with other drains, approval from environmental agencies may be required.

 

Municipal Drains

Municipal drains have existed in Ontario for over a hundred years. Most were/are constructed tosouth nation municipal drain improve the drainage of agricultural land by serving as a discharge point for both open channel drains and tile drainage systems. They also remove excess water collected by roadside ditches, residential lots, institutional and industrials lands and any other properties in rural areas. Municipal drains are constructed under the authority of the Drainage Act. Landowners requiring drainage petition the municipality. If certain criteria are met, the municipality appoints an engineer who prepares a report. The Engineer’s Report identifies the proposed solution to the problem and how the costs will be shared. Through a series of public meetings and several appeal stages, objections are heard and dealt with. If the drain is to proceed, the municipality passes a by-law adopting the engineer’s report. The project is then constructed by the municipality.

The cost of the construction is assessed to the lands within the watershed as either benefit or outlet or both, based on an assessment schedule prepared from the engineer’s report. Once constructed, the municipal drain becomes municipal infrastructure. Through its drainage superintendent, the municipality has the responsibility to repair and maintain the drain. Landowners within the watershed can also request that the drain be repaired or maintained. Repair and maintenance costs are also assessed to the lands within the watershed.

plan of a municipal drain
Plan of a Municipal Drain

 

By-Law 3366-2018 Drainage Maintenance Billing Policy

Municipal Drains in Augusta Township

The municipality currently has 11 municipal drains within the watersheds of Kemptville Creek and the South Nation River. Many of the drains have branches (secondary drains) that form part of the municipal drain.

Kempville Creek Watershed

Fox Municipal Drain
Streight Municipal Drain

South Nation River Watershed

South Nation Municipal Drain (Main Drain, Brayton Branch, Bond Branch)
Augusta Channel Improvement Municipal Drain
Mud Creek Municipal Drain (Main Drain, Branch “A”, Branch “B”, Branch “C”)
Salmon-Coville Municipal Drain
Tanney Municipal Drain
K. Matthie Municipal Drain
Martin Municipal Drain (Main Drain, Branch # 1)
Sire Brown Municipal Drain (Main Drain, Moledecki Branch, Conklin Branch)
Young-Ruigrok Municipal Drain (Main Drain, Ruigrok Branch)

 

The above noted municipal drains and their watersheds are shown on the map below. The map has been prepared for illustrative purposes only. If you have any questions with respect to your property and a municipal drain, please contact the municipal office.

 

Do and Don’t

You, as a landowner or as a potential landowner in the municipality, should:

  • If you know there is a municipal drain on your property, find out how the municipal drain affects your property. How much is your property assessed?
  • If you notice any problems with the municipal drain, immediately notify the Municipality.
  • Before purchasing a property, investigate how municipal drains may affect it.

You should not:

  • Obstruct access. Along every municipal drain is an unregistered work space that the municipality has the right to use to maintain or repair the drain. Please keep this work space accessible.
  • Store materials (i.e. brush or other floatable material) near the drain. During storm events and spring runoff this material may block the drain.
  • Perform any work on the drain yourself (including, but not limited to, the installation of crossings). Notify the Municipality to arrange for maintenance or the installation of a crossing on a municipal drain.
  • Direct septic system waste, milkhouse waste, barnyards and manure storage runoff or other pollutants to these drains.

Tile Drainage

Augusta Township administers the Tile Drainage Program whereby loans for tile drainage are available to property owners in the farm land tax class. Application forms and application guidelines are available from the municipal office.

Terms of the Loan:

  • All loans have a 10 year term and are repaid via your property tax notices
  • Interest rates may vary but are currently 6%
  • Landowners are eligible for a loan of 75% of the cost of the drainage work, up to $50,000
  • The loan can be repaid in full at any time

*No tile drainage can be undertaken within 120 metres of a Provincially Significant Wetland (PSW) without approval from the local conservation authority.  A wetland impact assessment that demonstrates what impact the drainage works will have on the PSW’s hydrologic function may also be required.

Tile Drainage Loan Application Form *note: if the form does not open, try opening it using a different browser.

For more information on the Tile Drainage Program, please visit the OMAFRA website.

municipal drains map

High Resolution Municipal Drains Map


“Top 10 Common Law Drainage Problems Between Rural Neighbours”

NOTE: The below information is from a pamphlet called “Top 10 Common Law Drainage Problems Between Rural Neighbours”.  A paper copy of the pamphlet is available at the Township Office.

Ontario Ministry of Agriculture, Food and Rural Affairs logo

Top 10 Drainage Problems Between Rural Neighbours

LAST MODIFIED: FEBRUARY 12, 2022

Introduction

It has often been said that good drainage makes for good neighbours. Unfortunately, drainage of water is one the most common areas of dispute between rural neighbours, whether they be farmers or not. Drainage disputes generally fall into the realm of Common Law, a system of law that Ontario inherited from Great Britain. Common Law forms the basis of our legal system. It always applies, unless it is specifically altered by a statute passed by our Provincial or Federal Governments. Common Law disputes are arguments between landowners, and if they cannot be mutually resolved, final solutions can be determined through the courts.

Landowners are considered to be equal under Common Law, whether they be private citizens, companies, road authorities, municipalities, or Provincial and Federal governments. So, if you get advice on Common Law drainage problems from a drainage contractor, a drainage Engineer, a lawyer, a Conservation Authority, or a Government Agency, remember that it is not their responsibility to solve the problem. Only the courts can make the final decision in the dispute. To obtain a ruling by a court, a civil action must be initiated by the damaged party.

Even though the courts have the ultimate decision on drainage disputes, neighbours should try to reach some common ground, and solve the problem in a neighbourly fashion without going to court. Court rulings in Common Law may not make either side happy. It is the intent of this Factsheet to help rural neighbours come to their own solutions and to avoid taking legal action against each other.

This Factsheet is not a substitute for good legal advice. Always consult a lawyer if a professional legal opinion is needed.

Previous Common Law court decisions have established precedents in drainage disputes, and from these precedents, a set of rules or principles have been developed that apply to water rights. These rules under Common Law can change as customs change and as new precedents are set. Also, the rules differ significantly between natural watercourses and surface water.

Natural Watercourses

Figure 1. A natural watercourse with a defined bed, banks and sufficient flow.
Figure 1. A natural watercourse with a defined bed, banks and sufficient flow.

Almost the whole definition of a natural watercourse is founded on the saying aqua currit et debet currere, or “water flows naturally and should be permitted thus to flow”. A natural watercourse is defined generally as “a stream of water which flows along a defined channel, with a bed and banks, for a sufficient time to give it substantial existence”. See Figure 1. It must, on casual examination, “present the unmistakable evidence of the frequent action of running water”. It is not essential that the supply be continuous, or form a perennial living source for flora or fauna. It is enough if “the water rises periodically from natural causes and reaches a plainly defined channel of a permanent character”. One can usually identify a natural watercourse on an aerial photo or a topographic map. See Figure 2. A natural watercourse “does not cease to be such if at a certain point it spreads out over a level area and flows for a distance without defined banks before flowing again in a defined channel”. Often, it is “the valley through which the stream runs, and not its low level or low water channel, which is the water course”. If water is in a natural watercourse, it must be permitted to flow.

Figure 3. A private ditch or channel across a low area is not usually considered to be a natural watercourse.
Figure 3. A private ditch or channel across a low area is not usually considered to be a natural watercourse.
Figure 2. A natural watercourse shows up on an aerial photo (left) and topographical map (right).
Figure 2. A natural watercourse shows up on an aerial photo (left) and topographical map (right).

Farmers, and others, often have their own ideas about what is or isn’t a natural watercourse. Obvious examples of natural watercourses in

Ontario include: the St. Lawrence River, the Niagara River, and the Grand River. Many creeks and streams might also be considered to be natural watercourses. However, private ditches and channels across low areas on one’s own property are not usually considered to be natural watercourses. See Figure 3. The courts have the final say on whether a channel is a natural watercourse or not. Everyone else can only offer an opinion.

Figure 4. Surface water has no defined course and no right of drainage.
Figure 4. Surface water has no defined course and no right of drainage.

Surface Water

Surface water has no defined course. See Figure 4. It is “the water that falls as precipitation, but which finds its way to a natural watercourse by percolation or flow”. Common Law can be confusing when it comes to surface water because, under most circumstances, it has no right of drainage and the law appears to deny the right of water to flow downhill. This is described further in this Factsheet.

Top 10 Common Law Drainage Problems Between Rural Neighbours

The following questions are commonly asked by rural landowners.

My neighbour’s land is higher than mine, but can he simply dump his water on my land?

If “his water” is surface water, then it has no right of drainage. Neighbours can either choose to keep their water on their property or allow it to pass along onto property at a lower elevation. Similarly, property owners at a lower elevation can either accept the water from neighbours above them or reject it. However, once the water reaches a natural watercourse it must be allowed to continue to flow through all properties.

Suppose there are two owners of adjacent parcels of land, A and B, where A is at a higher elevation than B. Obviously, precipitation that falls on the lands of A will flow towards the lands of B. If B objects to the flow of the surface water onto his lands, and A has done nothing to collect or concentrate the flow of water from his land, the courts are unlikely to rule against A, since they recognize that water flows downhill naturally. However, if B does not want the water from A, he can reject the water by building an impervious wall, berm or dyke along the boundary of his land, and in effect dam the water back upon the higher lands of A. Even though this may cause damage to A’s property, B would not likely be liable, since surface water has no right of drainage, and A must accept the flooding. B may even fill his land until it exceeds the height of the higher ground of A. This apparent paradoxical circumstance would not make good neighbourly sense, does not solve anything, and simply would cause hard feelings between the neighbours.

Can my neighbour outlet his tile over the fence onto my land, end it a few metres away from the property line on his side, or outlet it into my private ditch?

Water from tile drainage systems is considered to be surface water, so it has no right of drainage. Therefore, the situation is similar to the previous question, and the owner of the lower land, B, could again dam the water at the property line to protect his property. However, because water is being collected and deposited on B, B could also take legal action against A, the owner of the tile. B would have to prove that A is collecting water, dumping it on him, and causing damage that can be assessed a dollar value.

When someone tile drains their property, they are obliged to take this collected water to a sufficient outlet. When trying to find a sufficient outlet, they should follow the path the tile water would follow. Then, they should ask themselves if a reasonable person would think that water could flow down this path and not cause any harm to any land or road. If so, this is probably a sufficient outlet, and many potential disputes can be avoided.

Figure 5. Surface Water Drained Off Greenhouse Roofs Has Been Collected Into Eavestroughs, So It Must Be Taken To A Sufficient Outlet.
Figure 5. Surface Water Drained Off Greenhouse Roofs Has Been Collected Into Eavestroughs, So It Must Be Taken To A Sufficient Outlet.

If one has a private ditch on his property (not constructed under any legislation, such as a Municipal Drain), he is not obliged to clean it out for his neighbour’s benefit. That is, one does not have to clean out a private ditch to accommodate the tile drains from a neighbour on higher ground. Also, a neighbour is not permitted to trespass on another property to clean the private ditch out, or to dig a new ditch without the owner’s permission, unless there was some previously arranged, written Mutual Agreement Drain.

Can my neighbour dump the eavestroughs from his greenhouses onto my land?

Again, the water collected off a roof in an eavestrough (Figure 5) is considered to be surface water, and it has no right of drainage. It must be taken to a sufficient outlet. Since this water has been collected, the greenhouse owner could be liable for the damage that this water causes on the downstream land. Other examples of collecting water include private ditches that are not natural watercourses, swimming pool water, road ditches, irrigation water, water collected in catch basins, or runoff from parking lots and yard areas. The same answer applies as previously indicated.

Can I plug up the tile I found outletting onto my property, or into my private ditch?

Sometimes a new rural owner, say B, finds a tile draining out onto their land, or into their private ditch from higher neighbouring ground, say A. Normally, this would not be permitted under Common Law as outlined previously, since this tile water would be considered to be simply surface water. The only exception to this is if A’s tile outlet into B’s private ditch has existed for more than 20 years, and if during that time B never disputed or opposed the tile outlet. In this case, A acquires the right to outlet into the private ditch owned by B. This is called Prescriptive Rights, which is similar to Squatter’s Rights, established through the Statute of Limitations. However, even if one has the right to plug the tile outlet, it certainly would not make for good neighbourly relations. The best option would be to discuss the matter with the owner of the tile system upstream, A, and come to some agreement on how to proceed.

Do I have to let my neighbour run his tile into my tile drainage system?

No. Drainage tile is privately owned, and landowners are under no obligation to let a neighbour tile into it, as long as the tile is not part of a Municipal Drain. However, it would be neighbourly to come to some Mutual Agreement. A neighbour on higher land might pay for the privilege of using someone else’s tile or pay to install a larger one beside it that might be of some benefit in the future to either party. Landowners should be careful that they do not put their own tiled land at jeopardy, because they have allowed too much water into their main tiles. The main collector tile might not be designed to handle the extra water. Once a tile connection is made at the property line, it is very difficult for a landowner to know what other connections are being made further upstream for other owners or catch basins. Water from land at higher elevations above will always drain out first, while land at the lower elevation will drain more slowly if the main collector tiles are already full. It is strongly recommended that a written Mutual Agreement Drain be drawn up to keep these potential problems in mind. This agreement should be registered against both deeds for future reference and future owners. Unfortunately, landowners and their lawyers are often reluctant to sign Mutual Agreement Drain Documents because it adds something to the property deed that could make a future property sale less attractive to buyers.

Do I have to let my neighbour run his tile across my place to a sufficient outlet, and do I have to help pay the costs?

Again, there is no requirement for a neighbour of lower land to let an owner of higher land run a tile through their property. However, it would be neighbourly to come to some agreement that benefits both parties. Perhaps, if the tile was increased in size at the time of construction, then both owners could use it. However, as in the previous questions, both parties should draw up a Mutual Agreement Drain that is registered against both deeds for future reference and owners. This avoids misunderstandings about who pays what, and who is responsible for what. Even if an owner of lower land agrees to let the neighbour run a tile across their farm, he is under no obligation to help pay the costs. He may, however, receive some benefit from the tile and, if so, it would be neighbourly to help share the costs in that case.

The neighbour has another option, though, and that is to petition for a drain across the lower land under the Drainage Act. If he is successful, all neighbours would be forced to pay for their fair share of the costs based on how much water they drained into the watershed of the Municipal Drain, and how much benefit they received from it. However, in most cases, the Municipal Drain option might end up costing everyone more in the long run.

Sometimes a Municipal Drain does not flow through a landowner’s property even if he paid toward its cost. Paying toward the cost of a Municipal Drain still does not give a landowner the right to cross anyone’s property with a tile or ditch to gain access to the Municipal Drain. By paying towards a Municipal Drain, an owner acquires the “right to outlet his tile drainage system into the drain”, but this same owner must still “acquire the right to cross someone else’s farm, since the neighbouring farm is a private property”. If a landowner wanted access to the Municipal Drain, he should have brought this to the attention of the Drainage Engineer who designed the Municipal Drain in the first place. The Drainage Engineer could have designed a branch drain from the Municipal Drain through the neighbour’s property. Petitioning for this branch drain can be done at a later date under the Drainage Act, but it would be more complicated and costly after the fact.

I am putting in a 150 mm (6 inch) main tile for my farm, but my neighbour wants me to put in a 200 mm (8 inch) tile, so he can tile into it as well. Do I have to?

This question is similar to the previous one. One does not have to install a bigger tile to satisfy the neighbour’s wishes, although again it would be neighbourly to come to some mutual agreement.

Figure 6. Municipalities are not obliged to dig their road ditches deep enough to outlet tile drains, although these ditches often provide excellent outlets. Permission from the municipality is required.
Figure 6. Municipalities are not obliged to dig their road ditches deep enough to outlet tile drains, although these ditches often provide excellent outlets. Permission from the municipality is required.

Why doesn’t the road department make their road ditches deep enough to outlet my tile drains?

The road department is not required to dig their ditches deep enough to provide outlet for tile drains. See Figure 6. Road ditches are just another form of private ditch, and the road authorities are only obligated to dig their ditches deep enough to handle the surface water off their own roads. They are not even required to take surface water from surrounding land. There is no right of drainage of surface water even if it is in a road ditch unless the ditch is part of a Municipal Drain and access for tile drains is permitted. That is, an owner of lower land can block the passage of ditches that are not natural watercourses or part of a Municipal Drain. For normal road ditches, permission must be obtained from the road department to outlet tile drains into them.

Can my neighbour force me to take down my trees on my side of our property line because he says their roots are plugging his tile drains?

No, a neighbour cannot force anyone to take down the trees. However, if the trees are not removed and the situation is ignored, the neighbour may do some serious root pruning on their side of the property line that may affect the health of the trees. Some tree roots are known to travel more than 30 metres (100 feet). Unless absolutely necessary, trees should not be planted too close to property lines, especially water loving varieties such as willows and poplars. Conversely, tile drains and especially main collector tiles should not be installed too close to property lines that are already treed or are likely to be treed in the future.

Can I take logs and debris out of a natural watercourse adjacent to my property to get the water moving?

Anyone who interferes with the channel of a natural watercourse is liable for the damages that result from their actions. Before removing the obstructions, one should estimate the flow and volume of water being stored to see if the channel downstream can accommodate the sudden increase in flow without damage.

The authors are indebted to Ross Irwin, P.Eng. and John Johnston, P.Eng. whose previous work in interpreting the Common Law aspects of drainage was very helpful in the preparation of this Factsheet. Competent legal counsel should be procured for any drainage problems that may arise between rural neighbours.

For more information:
Toll Free: 1-877-424-1300
E-mail: ag.info.omafra@ontario.ca

IF YOU HAVE QUESTIONS REGARDING DRAINAGE IN AUGUSTA TOWNSHIP, PLEASE CONTACT:

Brad Thake
Public Works Manager/Drainage Superintendent
613-926-2002
bthake@augusta.ca