AGO 1993-063.

• Case Date: December 21, 1993
• Court: Ohio

Ohio Attorney General Opinions 1993. AGO 1993-063. December 21, 1993OPINION NO. 1993-063The Honorable John E. Meyers Sandusky County Prosecuting Attorney 100 North Park Avenue Fremont, Ohio 43420 Dear Prosecutor Meyers: You have requested an opinion on several questions pertaining to the county's maintenance of ditches pursuant to R.C. 6137.12. Your questions relate to crops or other objects located near a ditch.

Ditch Construction and Maintenance

R.C. Chapter 6137 requires each county to establish and maintain a fund for the "repair, upkeep, and permanent maintenance" of certain drainage improvements.(fn1) R.C. 6137.02; see 1982 Op. Att'y Gen. No. 82-021. Such maintenance may be done by contract or by force account under the supervision of the county engineer. R.C. 6137.05; see 1992 Op. Att'y Gen. No. 92-049. R.C. 6137.12 discusses the authority of persons making repairs to enter upon surrounding lands, as follows:

In the cleaning, repair, and other maintenance work on drainage improvements, the persons whose duty it is to perform the maintenance work may go upon the adjoining or abutting lands within the permanent easement necessary for proper operation of the required machinery, tools, motor vehicles, conveyances, or other equipment.

In the case of open ditches, the permanent easement so used shall be not more than twenty-five feet from the top of the bank, measured at right angles thereto, and wherever practical the area so used shall be on one side of the ditch only. When in his opinion an emergency situation exists at an open ditch needing maintenance, the county engineer may, with the approval of the board of county commissioners, temporarily extend the easement to not more than seventy-five feet from the top of the bank, measured at right angles thereto, in order to conduct the necessary maintenance work and alleviate the condition or conditions causing the emergency situation. The maximum width of permanent easement for closed ditches shall not exceed eighty feet centered on the center-line of the improvement. The permanent easement for all other improvements shall be as located and the width as specified by the county engineer. When the performance of maintenance requires the damage of existing crops beyond the permanently established sod or seeded strip, the owner of the crops shall be granted damages equal to market value, to be paid from the permanent maintenance fund established for the improvement. Under contract work, the county engineer may specify the right-of-way to be used within the permanent easement. Where the nature of the surface of the adjoining or abutting land does not prevent it, and there are growing crops on one side of the ditch but none upon the other, the right-of-way provided for shall be used on that side of the ditch on which there are no growing crops. In using the right-of-way, the persons performing maintenance shall, as far as possible, avoid damage to the owner of the adjoining or abutting lands.

If in the doing of this work it is necessary to damage or temporarily remove any fences, poles, or wire lines, the cost of repairing, removing, and replacing the fences, poles, and wire lines shall be included in the total cost of maintenance.

This section does not authorize passage across, along, or between railroad tracks until thirty days after notice has been mailed in accordance with section 6131.07 of the Revised Code. (Emphasis added.)

The "permanent easement" referred to in R.C. 6137.12 is the easement established when a drainage improvement is constructed. R.C. 6131.14 provides that, when an improvement is constructed pursuant to R.C. Chapter 6131, the county engineer must "file with the county recorder a property plat showing the general location of the improvement and a statement describing the width of permanent easement for maintenance as provided for in [R.C. 6137.12]." The "sod or seeded strip" referred to in R.C. 6137.12 is part of a drainage improvement, included for purposes of erosion and sediment control. R.C. 6131.14 requires that, when an improvement is constructed pursuant to R.C. Chapter 6131:

[t]he specifications shall provide for spreading and leveling of

...