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Show 542 DIFFUSED SURFACE WATERS construed to be a natural watercourse from the point at which the channel begins to take form."34 RIGHTS OF LANDOWNERS IN DIFFUSED SURFACE WATERS Rights of owners of lands on which diffused surface waters occur may be classified in two groups: (1) avoidance, that is, drainage, obstruction, and riddance of diffused surface waters that are not wanted by such landowners; and (2) rights to use such waters that are wanted by such landowners. In the Western States there is a considerable body of law concerning avoidance of such waters; comparatively little on rights to their retention and use. Drainage, Obstruction, Riddance Many courts have followed or at least discussed several rules with respect to this aspect of the handling of diffused surface waters. The following classification portrays the sometimes complex judicial distinctions: (1) civil law or natural flow rule, (2) common enemy and/or common law rules, and (3) rule of reasonable use. Civil Law or Natural Flow Rule Some judicial views and distinctions.-The civil law rule (inadvertently adopted by the California Supreme Court in 1873 under the misapprehension that it was a statement of the common law, which prevailed in California, "for otherwise it could not have been the law of this state,"35) was thus stated by that court in the 1873 decision:36 The prevailing doctrine appears to be that when two fields are adjacent and one is lower than the other, the owner of the upper field has a natural easement to have the water that falls upon his land flow off from the same upon the field below, which is charged with a corresponding servitude. Having stood unchallenged for 17 years before the supreme court's attention was called to this early misinterpretation, the court held in 1890 that the civil law rule had become a rule of property and must be adhered to from then on. Subsequent decisions down to 1966 recognized that the civil law rule thus adopted had become a rule of property in California.37 34 Week v. Los Angeles County Flood Control Dist., 80 Cal. App. (23) 182, 196,181 Pac. (2d) 935 (1947). 3sMcDanielv. Cummings, 83 Cal. 515, 519, 23 Pac. 795 (1890). 36Ogburn v. Connor, 46 Cal. 346, 350-353 (1873). "See, e.g., Weinberg Co. v. Bixby, 185 Cal. 87, 96, 196 Pac. 25 (1921); Coombs v. Reynolds, 43 Cal. App. 656, 660, 185 Pac. 877 (1919). |