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Show 546 DIFFUSED SURFACE WATERS 1876, contained a provision which now reads: "In no case shall any railroad company construct a roadbed without first constructing the necessary culverts or sluices as the natural lay of the land requires, for the necessary draining thereof."52 In tracing the development of the law of interferences with diffused surface waters in the leading case of Miller v. Letzerich (which did not involve railroad liability), the Texas Supreme Court observed that this statute of 1876 was a mere adoption of the civil law rule relating to such interferences, insofar as it could be made applicable to railroads. The statute applied to all grants of land in the State, regardless of their dates, on which or conterminous with which a railroad should be constructed.53 (b) The general statute.-In 1915, the Texas Legislature enacted a law forbidding the diversion or impounding of diffused surface waters in such manner as to damage the property of another.54 The current statute relating to alterations in the natural flow of diffused surface waters provides in part as follows:55 That it shall hereafter be unlawful for any person, firm or private corporation to divert the natural flow of the surface waters in this State or to permit a diversion thereof caused by him to continue after the passage of this Act or to impound such waters, or to permit the impounding thereof caused by him to continue after the passage of this Act in such manner as to damage the property of another, by the overflow of such water so diverted or impounded, and that in all such cases the injured party shall have remedies, both at law and in equity, including damages occasioned there- by * * * 56 The foregoing was followed by several provisos, including one that construc- tion and maintenance of flood control works pertaining to flows in watercourses and construction of water conduits should not be affected. Validity of the statute was sustained by the Texas Supreme Court.57 The statute relates only to "natural flow." It imposes on land no servitude to receive water that does not naturally flow upon it.58 A rule of the civil law is that lower lands owe a service to receive diffused surface water which may flow upon them untouched and undirected by the hands of man.59 This rule "Tex. Laws 1876, ch. 97, § 23, p. 147, Rev. Civ. Stat. Ann. art. 6328 (1925). "Miller v. Letzerich, 121 Tex. 248, 256, 49 S.W. (2d) 404 (1932). 54Tex. Gen. Laws. 1915,1st Called Sess., ch. 7. "Tex. Rev. Civ. Stat. Ann. art. 7589a (1954). "This statute, which pertains to "any person, firm or private corporation," has been held not to apply to a municipal corporation. Houston v. Renault, Inc., 431 S.W. (2d) 322, 324 (Tex. 1968). This case is discussed at note 93 infra. "Miller v. Letzerich, 121 Tex. 248, 253, 263, 267, 49 S.W. (2d) 404 (1932). "Higgins v. Spear, 118 Tex. 310, 313,15 S.W. (2d) 1010 (1929). 59Miller v. Letzerich, 121 Tex. 248, 254, 49 S.W. (2d) 404 (1932). |