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Show 6 OVERVIEW veloping more uniform approaches to common problems, as is illus- trated by water quality controls. e. Diffused Surface Water Rights to use surface water ordinarily are defined with respect to waters which are confined in natural watercourses, whether lakes or streams. Sometimes water is not so confined, but spreads out over the surface of the ground in no definite channel, usually resulting from rain or melting snow. When this happens, the water is classified as diffused surface water, and different legal rules apply. With respect to rights of use, anyone who captures diffused surface water on his land is entitled to use it, although in some appropriation States a filing might be required. When the concern is not with water use, but with disposal of un- wanted surface water, different legal considerations are encountered. Some States have adopted the common law rule, which originally declared that unwanted surface waters are a "common enemy" which any landowner may divert or obstruct to protect his own property, without regard to the damage that may result to others. Other States have adopted the civil law rule, which originally said that any particular tract of land is burdened with a drainage or flowage ease- ment in favor of upper land, and must receive the surface water from uplands in the manner in which it flows or drains by nature. In actual application today these two opposing rules have largely merged and recent cases demonstrate a relaxation of the common law rule by preventing a landowner from negligently or unreasonably diverting surface water to the damage of his neighbor; and a liberal- ization of the civil law rule by allowing landowners to obstruct or divert natural upland drainage in order to make reasonable improve- ments to their own property, so long as they do not act negligently and do not cause unreasonable damage to neighboring upland prop- erty. In short, all jurisdictions allow landowners to make reasonable use of their property, although some legal distinctions are drawn when property improvements interfere with vested rights in water use. 1.4 Ground Water Ground water is a significant potential source of water supply, estimated to be more than eight times the total supply of the rivers and fresh water lakes in this country. The ground water supply is not totally replaced by nature each year, as is the case with surface streams, and no one reliably knows what the total national recharge to the ground water supply is (although the initial source of recharge is surface precipitation). However, ground water reservoirs already have been developed to the point where they are an important source of supply, and further development undoubtedly will continue. Legal doctrines relating to ground water have been a rather recent development, and a sporadic one. Recent because little use was made of ground water so long as surface supplies were plenti- ful, and sporadic because little was known about subterranean waters, their migration, source of recharge, or rate of recharge. As more was learned concerning the physical characteristics of ground |
