Michigan Land Use Institute

Clean Energy / News & Views / Articles from 1995 to 2012 / Case Study #4: Private Property Rights at Risk

Case Study #4: Private Property Rights at Risk

Problem #4 with the Michigan Drain Code

December 1, 1999 | By Patty Cantrell
Great Lakes Bulletin News Service

  • Private Property Rights at Risk

Reform Recommendations

  • Require clear definition and rationale of "benefit."
  • Require verification of drain establishment and easements.

Drain Law Gives Right of Way Without Owners' Consent

Anyone who has ever sold or purchased property knows there is more than just money involved in real estate transactions. The process of conveying property always includes a stack of legal documents and a gauntlet of formal procedures. In fact, the United States is one of the safest places in the world to do business because its legal traditions ensure that property buyers know exactly what they're getting when they lay their money down.

That is not the case in Michigan, however, when it comes to owning land along a stream.

Your Land Is Their Land
Because the lower half of the state was once largely swampland, almost any waterway may have been used, or earmarked for use, as a conduit for draining water out of marshes so settlers could farm them. But most people do not know that their current county drain commissioner may still consider their tree-lined, trout-filled stream to be a drain, even if no one has thought about using it since the 1800s.

Most modern landowners are also not aware that, because the stream may still qualify as a "drain," any scrap of paper showing some long-ago landowner's signature or sketchy reference to a drain in the vicinity continues, under current law, to qualify as a drain easement over their property.

A drain easement gives drain commissioners the authority to widen, deepen, or straighten waterways that they maintain are drains. But unlike typical rights of way, drain easements obtained prior to 1956 (the vast majority) do not have to be recorded on property deeds to be legal. Neither must a drain commissioner be able to show a property owner the particular scrap of paper or faded signature that gives him the power to bulldoze fishing holes, tear out trees and fences, and dump brush and muck from stream dredging onto private property without the owner's permission and without any benefit to the landowner.

No Verification Necessary
This considerable exception to the rule of property law persists in this state because of a broad water statute called the Michigan Drain Code. Designed at the turn of the last century, this law continues to impose 19th century drainage mandates on 21st century landowners by granting government officials unchecked power over private property.

Katy Jarrad and her neighbors along Grub Creek, a tributary of the Looking Glass River, know what it's like to try protecting family farmland against the drain commissioner's bulldozer. Sheriff's deputies escorted the Shiawassee County drain commissioner onto their properties in 1997 under the Drain Code's assumption that the pile of vague and unverified signatures that he produced as evidence of historic easements were valid.

Geoffrey Seidlein, attorney for the Michigan Association of County Drain Commissioners, says verifiable easements are not necessary under the Drain Code if the drain is "visibly in existence" and was properly "established" according to the law. "The assumption is that it is a public drain and is located within a public easement," he says. That gives drain commissioners the authority to take "sufficient ground on either side" of a waterway to do any work allowed under the Drain Code, he says.

Dubious Origins
The same thing goes for some old county roads, where local governments may hold historic, often unrecorded easements that still give them the power, for example, to cut down cherished trees for road maintenance or widening. But a road is much different than a clear and quiet stream that winds through rural properties, says Sue Julian of the Michigan Drain Code Coalition. "If you're located on a road, or near power lines and pipelines, it's obvious you live near a public utility with a public right of way. If you're located on a river, you don't know it's a drain, and the registrar of deeds can't tell you."

And even if this "drain" may be "visibly in existence" in the eyes of a drain commissioner, it is often unclear whether it was ever "legally established." On Grub Creek, for example, the drain commissioner's office cites a failed 1943 attempt to turn the Looking Glass River and tributaries into an intercounty drain as legal establishment.

The absence of solid evidence, however, doesn't seem to restrain drain commissioners. Debbi Kile, senior attorney for Consumers Energy, says the power company regularly encounters supposed legal drain documents that wouldn't stand up under any normal real estate scrutiny.

"A lot of times there's nothing of record, or they'll have something signed, but there's no way of knowing that was the right person to sign, or if all the people who should have signed it did," she says. "It's been a problem," she says of the fact that drain projects often force the company to give up its own, purchased property rights to make way for the dredging. "We end up getting a drain in a place where it cuts off our access to one of our facilities."

Paying the Bulldozer's Way
The clean, fish-filled creek that once flowed across Katy Jarrad's third-generation farm is now a dirty drainage ditch because Michigan law denied her and her neighbors their typical property rights. The county drain commissioner has also billed Ms. Jarrad and more than 400 other area residents for the cost of the destruction. Under the Drain Code, local landowners are responsible for paying the financial, as well as the property price, of draining land.

Michigan Land Use Institute

148 E. Front Street, Suite 301
Traverse City, MI 49684-5725
p (231) 941-6584 
e comments@mlui.org