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Show 614 OKLAHOMA "injuring" an adjoining owner.74 The lower owner who receives sur- face water cast onto his land through artificial channels has a right to erect a dam to fend off the water.75 As in many states, the line of demarcation between the civil law and common enemy rules is in- deed a vague one. 4. Ground Water a. preview Oklahoma ground water law is rather complicated. As will be seen, legislation enacted in 1890 declared that the landowner was the owner of all water flowing over or under his land. The courts, how- ever, adopted and applied reasonable use rules to ground water. In 1949, an appropriation system for ground water was established, and this act was amended in 1961, 1965, and 1967, and of particular significance was a 1963 statute which declared that ground water was to be governed by the Oklahoma ground water law. With this activ- ity, both legislative and judicial, as a background, the legislature in 1972 repealed the ground water code and enacted a new one, but deferred the effect of the repeal and the effective date of the new act to July 1, 1973. This transition from the 1890 statute to the 1973 act is explained in the sections which follow. b. EARLY LAW As mentioned above, legislation dating back to 1890 (now sec. 60 of title 60, relating to estates in real property) provided that the owner of land "owns water standing thereon, or flowing over or under its surface but not forming a definite stream." In 1963, a further sentence was added to the statute: "The use of ground water shall be governed by the Oklahoma ground water law" (referring to title 82, sees. 1001 et seq.). Professor Rarick has said that the legislative history of the first sentence came from the Field Civil code which was prepared for but not adopted by the New York Legislature.76 Apparently, the draftsmen intended to adopt the English view of absolute ownership of percolating ground water for they cited the famous English de- cision in Acton v. BlundeM,77 as well as two New York decisions which followed the philosophy of that case. However, this appears not to have influenced the Oklahoma Supreme Court, which in a series of cases78 adopted the "reasonable use theory" in ground water cases, relying on the majority rule in the courts of other States. Professor Rarick has discussed these cases in detail, and he points to some rather confusing judicial language which speaks of "reasonable use" as well as "correlative rights" of surface landowners, but concludes that the latter phrase was not actually intended to mean that land- ** Hastens v. Welder, 270 P. 2d 960 (Okla. 1954) ; Gregory v. Bogdanoff, 307 P. 2d 841 (Okla. 1957). ™King v. Cade, 205 Okla. 666, 240 P. 2d 88 (1951) ; Ouloertson v. Greene, 206 Okla. 210, 243 P. 2d 648 (1952). ¦raRarick IV at 403. 77 12 M. & W. 324, 152 Eng. Rep. 1223 (Exch. 1843). 78 Canada v. City of Shawnee, 179 Okla. 53, 64 P. 2d 694 (1936) ; City of Stillwater v. Cundiff, 184 Okla. 53, 87 P. 2d 947 (1939) ; Bowles v. City of Enid, 206 Okla. 611, 245 |
