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Show 5 50 DIFFUSED SURFACE WATERS common law rules. Some Western State statutes which may in effect constitute modified civil law rules are discussed earlier under "Civil Law or Natural Flow Rule-Some State statutes." The trend appears to be away from strictness and toward modification in the direction of reasonable use, discussed in the next subtopic. In a 1965 case, the Oklahoma Supreme Court said: The long-standing rule in this jurisdiction is stated in Gregory v. Bogdanoff, Okl., 307 P. 2d 841, p. 843 [1957]: "This court has long given its approval to the 'Common Enemy Doctrine' in a modified and restricted sense. In cases approving same we have said that each proprietor may divert the water, cast it back or pass it along to the next proprietor, provided he can do so without injury to such adjoining proprietor. However, in all such cases we have laid down the rule that no one is permitted to sacrifice his neighbor's property in order to protect his own. See Gulf, C. & S.F. Ry. Co. v. Richardson, 42 Okl. 457, 141 P. 1107 [1914]." The quoted rule was referred to in Syllabus 1 of Haskins v. Felder, Okl., 270 P. 2d 960, [1954] as follows: "The common law governing the diversion of surface waters as adopted and applied in this state has been modified by the rule of reason." n The Washington Supreme Court pointed out in 1896 that courts of some States had adopted the civil law rule, under which a lower estate is held subject to the easement or servitude of receiving the flow of surface water from the upper estate, without obstruction or diversion to the damage of the lower tract. "But the contrary rule of the common law has been adopted in many of the states and must be followed in this case * * *. By that law, surface water, caused by the falling of rain or the melting of snow * * * is regarded as an outlaw and a common enemy against which anyone may defend himself, even though by so doing injury may result to others."73 By reference to this case, the supreme court declared in 1963 that "It is well established in this State :hat surface waters are to be regarded as outlaw or common enemy waters, against which every proprietor of land may defend himself, even to the consequent injury of others."74 But in a previous 1963 case the court, after similarly adhering to and stating the common enemy rule, added that, "Surface waters may not be artificially collected and discharged upon adjoining lands in quantities greater than, or in a manner different from, the natural flow thereof."75 This is a modification of the common enemy rule. 72Lynn v. Rainey, 400 Pac. (2d) 805, 813 (Okla. 1965). See also Iven v. Roder, 431 Pac. (2d) 321 (Okla. 1967). "Cass v. Dicks, 14 Wash. 75, 78, 44 Pac. 113 (1896). 74Kelly v. Gifford, 63 Wash. (2d) 221, 222, 386 Pac. (2d) 415, 416 (1963). nsKing County v. Boeing Co., 62 Wash. (2d) 545, 384 Pac. (2d) 122, 126 (1963), citing |
