Problem
Ed owned a large, roughly square plot of farmland bordering on a river. He decided to subdivide the plot into two, equal-size parcels with a common north to south boundary. Ed assumed the west parcel would be the more valuable of the two parcels so he sold it to Frank. The deed to Frank required that the grantee and his assigns, heirs and successors maintain the levees along the river to protect the surrounding land and crops from flooding. The deed was recorded.
After the closing, Ed asked Frank if it was OK for the parcel that Ed retained to continue to drain runoff into a drainage ditch running across Frank's land. Since the ditch was already there and didn't require any changes to Frank's land, Frank told Ed that he didn't mind. Three years later, Frank sold his parcel to George who continues to farm it. When Ed died in two years later, his parcel was validly transferred through probate to his daughter, Helen, who now farms it. Recently, both farms flooded because George has not properly maintained the levees. Helen comes to you for advice. Helen wants to know:
1) Does she have a claim against George to force him to maintain the levees?
2) If she sues George, could he lawfully stop her from using the drainage ditch on his land?
3) What advice would you give Helen?