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Show PHYSICAL CHARACTERISTICS OF DIFFUSED SURFACE WATERS 537 difficult to define physically, its meaning in law is definite."5 At this dividing line, wherever fixed, the law of diffused surface water ceases to be applicable and the law of watercourses begins to apply. This vitally important question of gradation of diffused surface waters into a watercourse appears in court opinions in many cases, a few of which are cited in the accompanying footnote.6 Importance of the Problem Originally, questions concerning diffused surface waters arose chiefly between neighboring landowners, when one wanted to prevent the water from flowing across his property from higher lands and claimed the right to cast it back upon his neighbor's land. They arose likewise in connection with the protection of land from overflow from streams. A few of the contro- versies dealt with the right of the landowner to make beneficial use of the water; such controversies were primarily between individuals. For a long period the problem of riddance of diffused surface waters was generally of greater importance from a legal standpoint than was the right to make use of them. Soil and water conservation and other governmental programs have raised important questions concerning the control and use of diffused surface waters. It became necessary to ascertain the landowner's rights as well as liabilities with respect to such waters while they were on his land, not only as against his neighbor under common law, common enemy, and civil law principles, but also as against the claims of appropriators on watercourses of which the diffused surface waters constituted part of the source of supply. More specifically, is the landowner's right to withhold such naturally flowing diffused waters an absolute right? or is it qualified by the rights of others? or is it subordinate to the rights of appropriators on the stream to whose lands the waters would flow if not interfered with, and whose appropriative rights may be adversely affected by the upper landowner's operations? The growing importance of the problem arose from the fact that large-scale operations for controlling diffused surface waters throughout the upper portions of a watershed conceivably might materially alter the flow in the streams that naturally drained the watershed. 5 Harding, S. T., "Water Rights for Irrigation-Principles and Procedure for Engineers" 9 (1936). 6Mogle v. Moore, 16 Cal. (2d) 1, 8-9, 104 Pac. (2d) 785 (1940); Week v. Los Angeles County Flood Control Dist., 80 Cal. App. (2d) 182, 196, 181 Pac. (2d) 935 (1947); Scott v. Watkins, 63 Idaho 506, 517-518, 122 Pac. (2d) 220 (1942);Rait v. Furrow, 74 Kans. 101, 106-107, 85 Pac. 934 (1906); Town v. Missouri Pac. R.R., 50 Nebr. 768, 774-775, 70 N.W. 402 (1897); Chicago, R. I. & P. R.R. v. Groves, 20 Okla. 101, 117-118, 93 Pac. 755 (1908); Gramann v. Eicholtz, 36 Tex. Civ. App. 309, 310, 81 S.W. 756 (1904); Alexander v. Muenscher, 7 Wash. (2d) 557, 559-560, 110 Pac. (2d) 625 (1941). |
