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Show RIGHTS OF LANDOWNERS IN DIFFUSED SURFACE WATERS 557 Rights of Use As stated at the beginning of this main topic "Rights of Landowners in Diffused Surface Water," in the Western States there is a considerable body of law pertaining to avoidance of such waters where not wanted by the owners of lands on which they occur, and comparatively little on rights to their retention and use when they are wanted by such landowners. Following are some reported court decisions and legislation pertaining to the latter subject. California In California, there is little authority with respect to rights to the use of diffused surface waters. The chapter on "General State Policy" in the California Water Code contains a section declaring that "All water within the State is the property of the people of the State, but the right to the use of water may be acquired by appropriation in the manner provided by law."97 However, in the part of the Water Code that deals with waters subject to appropriation, specific references are only to "stream, lake or other body of water," "subterranean streams flowing through known and definite channels," and "All water flowing in any natural channel."98 And in the chapter on "Applications to Appropriate Water" is a section reading:99 An appropriation of water of any stream or other source of water under this part does not confer authority upon the appropriator to prevent or interfere with soil conservation practices is more clearly defined], in all those factual situations where the provisions of Section 61-01-22, North Dakota Century Code, do not apply." Section 61-01-22, set out in the Jacobsen case, 190 N.W. (2d) at 5, pertains to permits from the State Water Conservation Commission to drain waters from a pond, slough, or lake draining an area of 80 acres or more into a natural watercourse as defined by § 61-01-06 or into a draw or natural drainway. In a recent case the Hawaii Supreme Court also adopted the reasonable use rule. Rodrigues v. State, 52 Haw. 156, 472 Pac. (2d) 509, 516 (1970). The court said, "We believe our decisions so closely approach the reasonable use rule that it is incumbent on us to adopt it." 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, but it decided to adopt the "reasonable use" rule with respect to the drainage of surface waters in urban areas. Under this rule, each owner "is legally privileged to make a reasonable use of his land, even though the flow of surface waters is altered thereby and causes some harm to others, but incurs liability when his harmful interference with the flow of surface water is unreasonable." Mulder v. Tague, 85 S. Dak. 544,186 N.W. (2d) 884, 887-888 (1971), quoting in part from 1A "Thompson on Real Property" § 266, p. 384. As discussed at note 89-91 supra, the California Supreme Court superimposed a rule of reasonable conduct upon the modified civil law in a 1966 case. 97Cal. Water Code § 102 (West 1956). "Id. §§ 1200 and 1201. 99Id. § 1252.1. |
