ATG requires members to raise the following exception on all policies for unsubdivided land and on all policies for land that was subdivided within the last ten years:

Rights of way for drainage tiles, ditches, feeders, and laterals.

Unsubdivided land includes all commercial land, industrial land, vacant land, and farmland.

ATG requires this exception because drainage easements can be created by prescription, oral agreement, or by a written easement. Illinois has a statute entitled Rights of Drainage - Private and Mutual Drains, 70 ILCS 605/2-1 et seq, that governs drainage easements. The statute provides that underground drainage systems constitute an easement in favor of the property drained by the drainage system even if no written document creates the license or easement in favor of the drained property. 70 ILCS 605/2-8. Either an oral agreement or the fact that a drainage system has been laid in the ground is sufficient to create an enforceable easement in favor of the drained land. Additionally, the easement continues into perpetuity, the owner of the drained land has the right to repair the easement, and the right to penalties of the owner of the servient land interferes with the drainage system. 70 ILCS 605/2-10 to 2-12. Therefore, the owner of the property drained by the tile has a right to use the easement. This right must appear as a Schedule B exception for an unrecorded drainage easement on any title insurance policy.

While Indiana and Wisconsin do not have similar laws approving unrecorded drainage easements, the common law of these states would allow owners of drained land to obtain prescriptive easements for their drainage systems. For this reason, ATG requires the exception in all states.

If you have any questions about the drainage tiles exception, please contact the Underwriting Department (800.252.0402 or legal@atgf.com).

© ATG UB0103vol6no1