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Show 548 DIFFUSED SURFACE WATERS Although the court did not discuss the question, the "common law" rule adhered to by the court is substantially like the "common enemy rule." Distinguished.-In 1923, the Colorado Supreme Court held that the so-called common enemy rule was not the one that prevailed at the common law, and that it was inapplicable to conditions in Colorado.66 In 1932 the Texas Supreme Court held that the "common enemy doctrine" had been adopted by the courts of that State under the mistaken view that it was the common law rule, although they did depart from it to the extent of limiting its sweeping effect. However, the confusion and injustice engendered by adoption of this "common enemy doctrine" led in 1915 to enactment by the legislature of the general liability statute discussed previously under "Civil Law or Natural Flow Rule-Some State statutes." The supreme court held this act to be valid and constitutional, and applicable to all lands of the State whether granted under the civil law or the common law.67 In a 1968 case,68 the court reexamined its common law rule and decided to apply the rule of the Restatement of Torts, section 833, at least as to drainage of urban property by municipalities, as discussed later under the "Rule of Reasonable Use." The Nebraska Supreme Court went into the instant topic quite thoroughly. Some excerpts from the opinion follow:69 What is known as the common enemy doctrine originated in Massachusetts and is no part of the common-law rule. It has been adopted in some other states, generally with exceptions and modifications. While it is sometimes referred to in our cases as the common-law rule, it actually has no relation thereto. * * * It was assumed, and we now think incorrectly, that the common enemy doctrine originated in the common law dealing with surface waters. We now hold that the common enemy doctrine is not the law of this state, and that the true doctrine of the common law in regard to surface waters is as a general rule in force and controls in this state. It was concluded that, in Nebraska, diffused surface waters may be dammed, diverted, or otherwise repelled if necessary and in the absence of negligence. But when diffused surface waters are concentrated in volume and velocity and flow into a natural depression, draw, swale, or other drainway, then as against the rights of the upper proprietor the lower proprietor cannot irrigation water originating in the Bitter Root River and also surface waters onto the plaintiff's land. It cannot be construed as prohibiting a landowner from protecting his land from the encroachment of surface waters." See also State Highway Comm'n v. Brastoch Meats, Inc., 145 Mont. 261,400 Pac. (2d) 274 (1965). "Boulder v. Boulder & White Rock Ditch & Res. Co., 73 Colo. 426, 430-431, 216 Pac. 553 (1923). 61 Miller v. Letzerich, 121 Tex. 248, 263-267, 49 S.W. (2d) 404 (1932). "Houston v. Renault, Inc., 431 S.W. (2d) 322 (Tex. 1968). 69Nichol v. Yocum, 173 Nebr. 298, 113 N.W. (2d) 195, 200 (1962). |