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Show COLLATERAL QUESTIONS RESPECTING WATERCOURSES 87 A Kansas statute authorizes a landowner (1) to build a levee along a natural watercourse to repel floodwater if his plans have the approval of the Chief Engineer of the State Division of Water Resources, and (2) with the approval of that official, to build a levee on his own land to repel overflows (which the statute terms "surface water") on upper lands in the event that the upper landowners have not themselves diked against the overflows.335 In situations to which the statute applies, overflow from a watercourse is thus classified by the statute as diffused surface water regardless of its subsequent connection with or separation from the stream. However, as the statute covers these situations whatever the waters are called, the statutory classification of such water is of no practical importance. Nebraska.-"We think our decisions have committed us to the doctrine that a riparian owner may not embank against the overflow of running streams when the effect is to cause an increased volume of water on the land of another riparian owner to his injury, and if he does so he is answerable in damages."336 The same rule applies to diking against floodwaters within the flood channel or flood plain of a running stream.337 This applies also to overflows that return to the stream after separation therefrom, or that find their way to another stream or watercourse; but other overflows that permanently escape contact with watercourses are diffused surface waters, a common enemy.338 Oklahoma.-The right of a riparian owner to protect his land against overflow resulting from any change in the natural state of a stream, and to prevent the old course of a stream from being altered, was declared by a Federal court in 1900, while Oklahoma was a Territory.339 The State court decisions in Oklahoma with respect to repulsion of stream water distinguish between ordinary and extraordinary floods of a watercourse, and hold that the owner of abutting land has no right to erect a barrier which in time of ordinary flood will throw the water in larger volume on the lands of another so as to overflow and injure them; and that if he does so, the injured party has the right to repel the water.340 The limits of the protective right of the landowner are the same, whether the floodwater comes down the main channel, or whether the overflow spreads out over adjacent lowlands and 335 Kans. Stat. Ann. § 24-105 (1964). 336Hofeldt v. Elkhorn Valley Drainage Dist, 115 Nebr. 539, 546, 213 N. W. 832 (1927). 331Bahm v. Rakes, 160 Nebr. 503, 514-515, 70 N. W. (2d) 507 (1955). 338 Hengelfelt v. Ehrmann, 141 Nebr. 322, 327, 3 N. W. (2d) 576 (1942). 339 Gulf, C. & S. F. Ry. v. Clark, 101 Fed. 678, 680-681 (8th dr. 1900). The declaration was that: "A riparian owner may construct the necessary embankments, dikes, or other structures to maintain his bank of the stream in its original condition, or to restore it to that condition, and to bring the stream back to its natural course; and, if he does no more, riparian owners upon the opposite or upon the same side of the stream can recover no damages for the injury his actions causes them." 340 Jefferson v. Hicks, 23 Okla. 684, 689, 102 Pac. 79 (1909); George v. Greer, 207 Okla. 494,495,250 Pac. (2d) 858 (1952);Dowlen v. Crowley, 170 Okla. 59, 62, 37 Pac. (2d) 933 (1934). |
