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Show RIGHTS OF LANDOWNERS IN DIFFUSED SURFACE WATERS 549 obstruct them. At common law, the right to drain surface waters into depressions, draws, swales, and drainways which existed in the state of nature was recognized. Lower lands were and are at common law under a natural servitude to receive the surface water of higher lands flowing along natural depressions on the surface of the ground; and this is so, whether or not a live watercourse occupies the natural course. We point out that the owner of land is in the position of an owner of all surface waters which fall or arise on it, or flow upon it. He may retain them for his own use. He may change their course on his own land by ditch or embankment, but he cannot divert their flow upon the lands of others except in depressions, draws, swales, gulches, or other drainways through which such waters were wont to flow in a state of nature.70 The court cited a number of its own decisions that were consistent with the common law rule, "although they appear to be treated as exceptions to the common enemy doctrine. In other words, the court has resorted to exceptions to what was thought to be the common-law rule when, in fact, resort to exceptions was not required if the true common-law rule were properly applied."71 Modifications of Civil Law and Common Enemy or Common Law Rules Following are judicial comments that indicate some of the several modifications that have been made in the civil law and common enemy or 7O113N.W. (2d)at201. 71 Id. In Nickerson Township, County of Dodge v. Adams, 185 Nebr. 31, 173 N.W. (2d) 387, 390 (1970), the court said: "Diffused surface waters may be used in such manner as the owner of the land sees fit, provided that he does not concentrate them and dump them unlawfully on the land of another to his damage. He may change their course, store them, or reuse them, but he may divert them on the land of another only through depressions, draws, or other drainways as they were wont to flow in the state of nature. See, Nichol v. Yocum, 173 Neb. 298, 113 N.W. (2d) 195 [1962]; Muff v. Mahloch Farms Co., Inc., 184 Neb. 286, 167 N.W. (2d) 73 [1969]. It should be noted that the element of injury or damage has been an essential part of the rule, at least since Clare v. County of Lancaster, 160 Neb. 622, 71 N.W. (2d) 190 [1955]. There is also statutory authority for landowners to drain land by constructing open ditches under specified conditions without liability for damages. See § 31-201, R.R.S. 1943." Nebr. Rev. Stats. § 31-201 (1968) provides that "Owners of land may drain the same in the general course of drainage by constructing an open ditch or tile drain, discharging the water therefrom into any natural watercourse or into any natural depression or draw, whereby such water may be carried into some natural watercourse; and when such drain or ditch is wholly on the owner's land, he shall not be liable in damages therefore to any person or corporation." See also Linch v. Nichelson, 178 Nebr. 682, 134 N.W. (2d) 793, 795 (1965); Rolfsmeyer v. Seward County, 182 Nebr. 348, 154 N.W. (2d) 752, 754 (1967); Kuta v. Flynn, 182 Nebr. 479,155 N.W. (2d) 795, 797 (1968). |