Definition
A drain is a channel, conduit, ditch, or hollow space — natural or artificial — through which water is carried off from land or structures. In legal usage, the term operates in two primary contexts:
1. Physical infrastructure. A drain is any constructed or naturally occurring watercourse, pipe, trench, or ditch used to remove surface water, groundwater, or sewage from land. This includes roadside gutters, agricultural ditches, underground pipes, and open channels that carry water away from buildings or fields.
2. Legal right to drain. The right to drain water across or through another person's land is a form of easement — a right acquired by express grant, implied grant, or prescription. The easement holder may conduct water through an established channel crossing the servient estate, but the right is generally limited to the use as established; expansion of drainage burden on the servient land typically requires a new grant.
Common Language
Modern common usage (Wiktionary): A conduit allowing liquid to flow out of an otherwise contained volume; a plughole; also, figuratively, something consuming resources and providing nothing in return.
Historical common usage (Webster's 1913): To draw off by degrees; to cause liquid to flow gradually out or off; to exhaust of liquid contents by drawing them off; to remove surface water from land or streets.
The common and legal meanings overlap substantially in the physical sense — both refer to channels or conduits that remove water. The legal significance lies in what ordinary usage ignores: the proprietary and easement dimensions. When a drain crosses a property boundary, it is not merely a plumbing fixture but a servitude with defined rights, duties of maintenance, and limits on alteration. The figurative sense (drain as depletion) has no legal counterpart in this context.
Common Confusion
Drain is sometimes used interchangeably with sewer, ditch, or watercourse, but these terms carry distinct legal meanings in many statutory and regulatory frameworks. A sewer typically implies a system for sewage or wastewater connected to a municipal treatment network; a drain may carry surface water or agricultural runoff without connecting to such a system. A natural watercourse carries water in a defined channel as a matter of natural topography, whereas a drain is often artificial or improved. The distinction matters for determining which regulatory scheme applies — drainage law, water law, or municipal sewer law — and for allocating maintenance obligations between private landowners and public authorities.
Why It Matters in Research
Researchers will encounter drain in three distinct legal contexts, each with different doctrinal roots:
First, easement law. The right to drain across another's land is one of the oldest recognized easements. Research into drainage easements requires attention to the method of acquisition — express grant, prescription, or implication — and to the scope of the right. Scope disputes (whether an easement allowing drainage of a small field permits later drainage of a larger developed parcel) generate significant litigation. Relevant doctrine overlaps with easement law generally, but drainage easements have fact-specific rules about alteration of the dominant estate that intensify the burden.
Second, drainage district law. Much of American drainage law, particularly from the late nineteenth century onward, is statutory. States created drainage districts with taxing authority and eminent domain power to construct and maintain agricultural drainage works. Sources from this period use drain in a quasi-public-law sense — as infrastructure subject to district assessment rather than private easement. Researchers consulting late nineteenth- and early twentieth-century materials should determine whether the drain at issue is a private easement or a public drainage district project, as the legal frameworks differ fundamentally.
Third, nuisance and surface water law. Disputes over drains frequently arise in the context of surface water: whether a landowner may alter drainage patterns to cast water onto a neighbor, and whether a drain constitutes an actionable interference. The applicable rule varies — some jurisdictions follow the common enemy doctrine (each owner may repel surface water), others the civil law rule (lower owners must accept natural flow). A drain that redirects or concentrates water may convert a natural condition into a legal wrong under either framework.
Trap for researchers: Bouvier notes that drain has no technical or exact meaning (quoting the Massachusetts Supreme Judicial Court). This should caution against importing precise statutory definitions from one jurisdiction into another. Early sources use drain, ditch, sewer, and watercourse loosely. When researching historical cases, verify which physical structure is at issue before assuming the legal category.
Historical Dictionary Support
Bouvier's Law Dictionary offers a functional definition — conducting water from one place to another to dry the former — and correctly identifies the drainage right as an easement acquired by grant or prescription. Bouvier cites Kent's Commentaries for the easement framework, which is accurate; Kent's treatment of easements remains a reliable foundational source for nineteenth-century American doctrine on this point. Bouvier's acknowledgment that the word has no technical or exact meaning (citing a Massachusetts case) is a genuinely useful research signal: courts construing drain in statutory or deed contexts have sometimes reached inconsistent results precisely because the term resists precise definition.
Anderson's Dictionary of Law defines drain primarily as a physical thing — any hollow space where water collects and passes off — and analogizes it to a ditch. Anderson's cross-reference to commerce is obscure in isolation but likely reflects the federal commerce power dimension of drainage projects that affect navigable waters, a connection that became constitutionally significant as drainage district projects expanded in scale.
Neither historical source addresses drainage district law, which by the time of their publication was becoming a major body of state statutory law. Researchers working in agricultural drainage contexts should not rely on these dictionary entries alone; the relevant law is largely codified in state drainage statutes and administrative frameworks developed after these dictionaries were compiled.
Jurisdictional Note
State drainage law varies significantly. Some states have comprehensive drainage district statutes with administrative procedures for establishing, funding, and maintaining drains; others address drainage primarily through common law nuisance and easement principles. The distinction between surface water rules (common enemy vs. civil law vs. reasonable use) affects whether artificial drains that alter natural flow create liability. Federal involvement arises when drains affect navigable waters or wetlands subject to federal regulatory jurisdiction.
Encyclopedia Cross-Reference
See Law Mind Encyclopedia: Easements; Surface Water Rights; Drainage Districts.