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Show 494 NEW HAMPSHIRE, While the problems which have arisen in New Hampshire have generally centered around the disposal of diffused surface water rather than the right to use it, it does seem that every landowner has the right to make a reasonable use of these waters while they are on his property.70 With respect to the disposal of these waters, New Hampshire has adopted a reasonable conduct rule.71 Under this rule, the landowner has the right to obstruct and divert diffused surface water in order to make a reasonable use of his property, even if it causes some injury to adjoining landowners.72 What is "reasonable" is a question of fact to be decided from the circumstances surrounding each case.73 In one situation, the court concluded that an upper landowner, in filling in a swamp and improving his property, was not liable even though his actions caused additional drainage onto lower lands and resulted in some damage to the lower property.74 By statute, New Hampshire regulates significant alterations of the characteristics of the terrain that might impede the natural surface water runoff or create an unnatural surface water runoff. Persons undertaking such activities must obtain a permit from the New Hampshire Water Supply and Pollution Control Commission.75 4. Ground Water New Hampshire has no State administrative structure for the regu- lation of the ground waters of the State. Further, there has been very little litigation with respect to waters from this source. How- ever, the court has rejected the concept of absolute ownership of ground water and adopted the rule of reasonable use with respect to both ground water flowing in underground channels and water merely percolating through the soil: If the rights are not absolute and unqualified, they are qualified, or there are no rights at all. We need not argue that some rights exist; that the owner of the land may make some use of the water in it; that he may do some acts that will affect to some extent the drainage; that a well may be dug, under some circumstances, although it will draw water by percolation from a watercourse, from adjoining land, or even from the well of a neighbor. If the views we have expressed are correct, they have already indicated the sole ground of the qualification of the landowner's right in such cases, and that is-the rule of reasonable use-of a reasonable exercise of one's own right.78 Many of the eastern States have adopted statutes which require well drillers to be licensed, and which regulate the drilling of water wells, but New Hampshire has not yet adopted any such regulation. New Hampshire does, however, regulate the pollution of ground water sources by requiring a permit from the water supply and pol- lution control commission for the construction of subsurface waste disposal systems." ™Bassett v. Salisbury Mfg. Go., 43 N.H. 569 (1862). nSwett v. Cutt8, 50 N.H. 439 (1870). ™Id. ™ Franklin v. Burgee, 71 N.H. 186, 51 Atl. 911 (1901) ; Swett v. Outts, 50 N.H. 439, 446 (1870). i* Priest V. Boston & M. R.R., 71 N.H. 114, 51 Atl. 667 (1901) ; but compare Franklin v. Burgee, 71 N.H. 186, 51 Atl. 911 (1901). TC See. 149 :8-a. ™Bassett v. Salisbury Mfg. Co., 43 N.H. 569 (1862). "Chap. 149-E. |
