There are two ways that water drains from rural land, and both occur here in the County of Haliburton. One way is by a stream or creek – a natural watercourse. A natural watercourse is established when water flows along a defined channel, with a bed and banks, for a long period of time. It is not essential that the water supply be continuous or that it provides a water source for flora or fauna. It is sufficient if the water rises periodically from natural causes and reaches a plainly defined channel of a permanent character. Spring run-off by a small stream flowing to a lake is a good example. The stream is often dry in the summer months.
A natural watercourse is protected by various government bodies like the Ministry of Natural Resources. You cannot divert the direction of the water flow or obstruct its flow without getting yourself into deep trouble. You may find that the watercourse adjacent to your property is full of brush and debris clogging the flow of water, which is then backing up onto your property. You may remove the brush and debris to get the water moving downstream. However, before removing these obstructions, you should estimate the flow and volume of water being held back upstream in order to determine whether the channel downstream can accommodate the sudden increase in flow without damage to neighbouring lands. You could very well be liable for the damage downstream.
The second way that water drains from land is from the surface. Surface water is water that falls as precipitation ultimately finding its way to a natural watercourse. Unlike a natural watercourse, it has no defined course and no right of drainage. If surface water of a neighbour flows to a neighbour at a lower elevation, and the higher neighbour has done nothing to collect or concentrate the flow of water from the lands, a court will not penalize the higher neighbour because the law recognizes that water flows downhill naturally. However, suppose eavestrough water is deliberately collected and drained to the lower neighbour’s land eroding those lands. Since this water is surface water with no right of drainage, the lower neighbour could dam the water at the property line to protect the lands from eroding. The lower neighbour could also take legal action due to the erosion.