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Show 560 DIFFUSED SURFACE WATERS portions of their farms and thereby obtained supplies of stock water entirely from rainfall.109 Montana Owners of lands on which diffused surface water originating from melting snows or rains collects or stands at times in low places, depressions, potholes, and shallow basins, have the right to capture and impound such diffused surface drainage while it is on their lands and farms for use thereon.110 Nebraska The rights to use diffused surface waters in Nebraska are summed up in brief sentences in two opinions of the supreme court: "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."111 "It is the law of this state that waters resulting from rainfall and melting snow are diffused waters which an owner may control on his own land. He may collect them, change their course, or pond them upon his land, or cast them into a natural drain without liability."112 Oklahoma The Oklahoma statutes provide, "The owner of the land owns water standing thereon, or flowing over or under its surface, but not forming a definite stream."113 In a case involving obstruction of water flowing through a natural drainway, the Oklahoma Supreme Court determined the water was not water from a definite stream:114 This provision [tit. 60, § 60] vests the ownership of surface water upon the defendant's property in the defendant. * * * * * * * 109This principle was restated as dictum in Kansas City & Emporia R.R. v.Riley, 33 Kans. 374, 380, 6 Pac. 581 (1885). li0Doney v. Beatty, 124 Mont. 41, 50, 220 Pac. (2d) 77, 82 (1950). In an earlier case involving liability for the obstruction of diffused surface waters, the court stated that each landowner may appropriate all the diffused surface water that falls upon his own premises. LeMunyon v. Gallatin Valley R.R., 60 Mont. 517, 523-525, 199 Pac. 915 (1921). inNichol v. Yocum, 173 Nebr. 298, 113 N.W. (2d) 195, 201 (1962). The court continued: "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." Id. U2Linch v.Nichelson, 178 Nebr. 682, 134 N.W. (2d) 793, 795 (1965). See also Nickerson Township, County of Dodge v. Adams, 185 Nebr. 31, 173 N.W. (2d) 387, 390 (1970), discussed in note 71 supra. 113Okla. Stat. Ann. tit. 60, § 60 (Supp. 1970). 11ANunn v. Osborne, 417 Pac. (2d) 571, 574 (Okla. 1966). |
