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Show 94 CHARACTERISTICS OF WATERCOURSE delay doing so beyond a reasonable time. * * * But in restoring the water to its original channel, he will not be permitted to disturb the rights of appropriators, nor has he the right to go upon the lands of others, without their consent or acquiescence, and build thereon dams and ditches, or either, whereby he may restore the lost waters to their original bed. The defendant in this case entered upon the lands of the plaintiff and constructed the ditch complained of without the consent of the latter, and, as in no other way can he bring back to the portion of the channel of Secret Creek passing over and across a corner of his lands the waters which had theretofore flowed therein, he stands as one who has lost his riparian rights with respect to the creek in question. Obstruction, Alteration, Diversion of Flow The general nile. -It is the general rule that no one has the right to obstruct the flow of a natural watercourse, or to divert the water from its natural channel into another channel, if the result of the change is to cause an overflow upon the land of another that would not have reached such land had the artificial change not been made.371 Stated differently, water flowing in a well-defined watercourse cannot be lawfully diverted and cast upon the lands of another to his damage where it was not wont to run in the course of natural drainage.372 Any damage caused by such obstruction or diversion is action- able.373 The same inhibition applies to waters within the flood channels or flood plains of watercourses.374 Whether, in these cases of obstructing or changing natural streamflows, the damaging inundation is directly caused by a dam across the stream, or by a structure extending out into the stream, or by a dike or embankment along its sides, or by any other artificial means, the same rule as to liability applies.375 371 See Clement v. State Reclamation Bd., 35 Cal. (2d) 628, 636, 642-643, 220 Pac. (2d) 897 (1950); Scott v. Watkins, 63 Idaho 506, 522, 122 Pac. (2d) 220, 226-227 (1942); Martinez v. Cook, 56 N. Mex. 343, 347-348, 224 Pac. (2d) 134 (1952); Schweiger v. Solbeck, 191 Oreg. 454, 464-467, 230 Pac. (2d) 195 (1951); Wilson v. Hagins, 50 S. W. (2d) 797, 798-799 (Tex. Com. App. 1932). Compare Jordan v. Mt. Pleasant, 15 Utah 449, 451-452, 49 Pac. 746 (1897). 372 Pint v. Hahn, 152 Nebr. 127, 130-131, 40 N.W. (2d) 328(1949). 373 Archer v. Los Angeles, 19 Cal. (2d) 19, 26, 28, 119 Pac. (2d) 1 (1941). According to the Court of Civil Appeals of Texas, materiality of such an injury is an important consideration, because an injury that is not material is not actionable: Knight v. Durham, 136 S. W. 591, 594 (Tex. Civ. App. 1911). 374 "The settled doctrine in this state is that no man has the right, without the consent of other riparian proprietors, to interfere with these flood-channels in such a way as to increase or diminish the water coming to other proprietors, to their injury and without their consent, * * * ." Krueger v. Crystal Lake Co., 111 Nebr. 724, 729,197 N. W. 675 (1924). SeeBahm v. Raikes, 160 Nebr. 503, 515, 70 N. W. (2d) 507 (1955). 375 Chandler v. Drainage Dist. No. 2, 68 Idaho 42, 46, 187 Pac. (2d) 971 (1947); Reed v. Jacobson, 160 Nebr. 245, 249-250, 69 N. W. (2d) 881 (1955). |
