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Show RIGHTS OF LANDOWNERS IN DIFFUSED SURFACE WATERS 551 In 1965, in a case in which a definite choice of drainage rules was necessary to the decision, the North Dakota Supreme Court made several statements of doctrine which, while not given a name, form an excellent explanation of the modified civil law rule. Several of these statements follow:76 The owner of the lower, or servient, estate must receive surface water from the upper, or dominant, estate, in its natural flow. While the owner of such upper land has a right to drain and dispose of surface water on his property, he may not concentrate such water and pour it through an artificial drain in unusual quantities and in greater-than-normal velocity upon a lower landowner's property. Subject to certain restrictions, and provided he acts reasonably and with prudent regard for the interests of adjacent owners so as not to increase the burden on the lower owner or injure his property, the upper owner may artificially drain his land. And he is not liable for damages for draining his land where water went over the lower owner's land before such draining and where such draining did not send the water down in a manner or quantity different from formerly. * * * However, the upper owner has no right to increase materially the quantity or the volume of water discharged on the lower estate or discharge it in a different manner than it usually or ordinarily would have gone in the natural course of drainage. In a later (1967) case, the North Dakota court adopted the reasonable use rule.77 According to the Arizona Supreme Court, under neither the civil law nor the common law does one have the right to collect diffused surface water in an artificial channel and cast it in large quantities upon the land of a lower owner to his damage.78 Similarly, the Colorado Supreme Court examined the "many apparently conflicting decisions" on the subject here under consideration and concluded that under the facts of the case it was immaterial which rule was to be followed. Under neither the "civil law, or the common law, or the so-called modified rule" has one owner the right to collect diffused surface water in an artificial channel, reservoir, or pond and discharge it upon his neighbor's lands to his injury-that is, in a different manner from its natural flow, or in greater several prior Washington cases. See also Colella v. King County, 72 Wash. (2d) 386, 433 Pac. (2d) 154,157 (1967). "Rynestad v. Clemetson, 133 N.W. (2d) 559, 563 (N. Dak. 1965). ''''Jones v. Boeing Co., 153 N.W. (2d) 897, 899-900 (N. Dak. 1967), discussed at note 96 infra. "Roosevelt In. Dist. v. Beardsley Land & Inv. Co., 36 Ariz. 65, 71, 282 Pac. 937 (1929); Maricopa County M. W. C. Dist. v. Warford, 69 Ariz. 1,11, 206 Pac. (2d) 1168 (1949); Tucson v. Koerber, 82 Ariz. 347, 353, 313 Pac. 411 (1957); compare Diedrich v. Farnsworth, 100 Ariz. 269, 413 Pac. (2d) 774, 781 (1966). |