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Show RIGHTS OF LANDOWNERS IN DIFFUSED SURFACE WATERS 543 In 1966, however, the California Supreme Court reviewed the entire subject extensively and concluded that "in the total spectrum of American case law, California may be considered a devotee of a modified civil law rule." Superimposed upon this, however, is an application of a rule of reasonable conduct pertaining to every party.38 The Montana Supreme Court in an early case observed that if a stream channel in controversy was only a passageway for the flow of diffused surface waters, the upper proprietors under the civil law had an easement over the lower land for the flow of such waters from their lands, which could not be interfered with or enjoined; however, under the common law, to which the court adhered, there was no such easement.39 A bare statement that as between owners of adjacent tracts of land, one lying higher than the other, the upper has an easement against the lower for the discharge of diffused surface water from the upper to the lower tract, and that the lower tract is burdened with a corresponding servitude to receive such flows, falls far short of stating the civil law rule as it has been stated and applied in most or all of the Western States where the courts have purported to recognize this rule. The judiciary has taken a much more realistic attitude in settling such controversies under the actual facts and circumstances pertinent to such disputes in the growing West, aided in a few instances by State statutes. Thus, the Nevada Supreme Court has indicated that while any damage occasioned thereby is damnum absque injuria, the easement applies only to waters naturally flowing from the upper to the lower tract. "Wherever courts have had occasion to discuss this question they have generally declared that the servitude of the lower land cannot be augmented or made more burdensome by the acts or industry of man."40 In a 1958 case, the Oregon Supreme Court noted that the civil law rule as established orginally by the courts of this country did not permit any alteration in the natural flow of diffused surface water, and that any right to do this by artificial means had been granted by modification or qualification of this civil law rule.41 The South Dakota Supreme Court criticized an asserted rule that would permit the upper owner to transfer the burdens imposed by nature on his land to that of the lower owner.42 To artificially drain a land-locked basin on the upper estate to a like basin on the lower estate is to relieve the upper estate of a "Keys v. Romley, 64 Cal. (2d) 396, 412 Pac. (2d) 529, 50 Cal. Rptr. 273 (1966), discussed at notes 86-91 infra. "Campbell v.Flannery, 29 Mont. 246, 251, 74 Pac. 450 (1903). 40Boynton v. Longley, 19 Nev. 69, 72-73, 6 Pac. 437 (1885). See also, Loosli v. Heseman, 66 Idaho 469,477,162 Pac. (2d) 393 (1945). 41 Garbarino v. Van Cleave, 214 Oreg. 554, 556, 558-559, 330 Pac. (2d) 28 (1958). 42La Fleur v. Kolda, 71 S. Dak. 162,167-168, 22 N.W. (2d) 741 (1946); Bruha v. Bochek, 76 S. Dak. 131,134, 74 N.W. (2d) 313 (1955). |