Q Water is draining off a county road through a drainage ditch that flows onto a private landowner’s property, flooding the private landowner’s culvert. The problem has been determined to be a result of the county’s own engineering and construction of the road and drainage ditch in years past. May the county lawfully enter the private property to repair, clean out and/or replace the culvert, even though the benefit is for only the landowner and not the general public under the authority of Section 19-5-92.1?

A Section 19-5-92.1 authorizes work on drainage ditches and the like on private property, but only if the board determines that the work for the benefit of the public, not solely for the benefit of private landowners. It may be possible that the county could perform the drainage work as suggested if it were done in conjunction with a settlement of a claim by the landowner, as per Section 25-1-47(2). The county would have to make the appropriate factual determinations and assert any applicable defenses, such as the statute of limitations or the Tort Claims Act. (Attorney General’s Opinion to Snowden, May 8, 2015)