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Show 544 DIFFUSED SURFACE WATERS burden at the expense of the lower estate. Such a rule could not have been anticipated by either the settler of the upper or the lower estate. It is unjust and unsound. It gains no support from the civil law rule, which obtains in this jurisdiction, or from more modern authority. And in a 1968 case, the court said: The [trial] court concluded that the actions of the defendant county in causing the land of these plaintiffs to be flooded by diverting water from another watershed resulted in the taking and damaging of private property for public use for which they were entitled to be compensated. This is in accord with our holdings that such flooding of land is compensable under eminent domain provisions. La Fleur v. Kolda, 71 S.D. 162, 22 N.W. 2d 741 [1946]; Bogue v. Clay County, 75 S.D. 140, 60 N.W. 2d 218 [1953]. This rule is not pertinent when the owner of dominant land drains surface waters from his land into a natural watercourse. This feature distinguishes Johnson v. Metropolitan Life Insurance Co., 71 S.D. 155, 22 N.W. 2d 737 [1946], relied on by the appellants, from the situation here involved.43 The New Mexico Supreme Court stated that it had limited the operation of the common law and had refused to follow it where its rules were not deemed suitable to local conditions. "Particularly, we have never followed it in connection with our waters, but, on the contrary, have followed the Mexican or civil law * * *.'544 Some State statutes. -Following are some Western State statutes that appear to follow some version, variation, or modification of the civil law or natural flow rule. (1) A section of the South Dakota statutes provides in part: Owners of land may drain the same in the general course of natural drainage, by constructing open or covered drains, discharging the same into any natural watercourse or into any natural depression whereby the water will be carried into some natural watercourse * * * and when such drainage is wholly upon the owner's land he shall not be liable in damages therefore to any person.4s In construing an earlier, but identical version of the 1967 statutory provision, the South Dakota Supreme Court said the legislative policy thus manifested ^Heezen v. Aurora County, 83 S. Dak. 198,157 N.W. (2d) 26, 30 (1968). The South Dakota Supreme Court in a recent case said that the so-called civil law rule has governed surface water drainage in South Dakota; however, it decided to adopt the "reasonable use" rule with respect to the drainage of surface waters in urban areas. Mulder v. Tague, 85 S. Dak. 544,186 N.W. (2d) 884, 887-888 (1971), discussed in note 96 infra. "Martinez v. Cook, 56 N. Mex. 343, 349, 244 Pac. (2d) 134 (1952). 45 S. Dak. Comp. Laws Ann. § 46-20-31 (1967). |
