| OCR Text |
Show RIGHTS OF LANDOWNERS IN DIFFUSED SURFACE WATERS 545 and construed by decisions of this court is that the owner of the dominant land, in the exercise of a reasonable use of his property, has the right by means of ditches and drains on his property to accelerate the flow of surface waters into a natural watercourse, and into which such waters naturally drain, provided he does not permit an accumulation of water on his property and cast the same on the servient land in unusual or unatural quantities.46 (2) In Kansas, prior to 1911, the common law or common enemy rule had obtained.47 In that year, however, the legislature changed the rule pertaining to lands used for agricultural purposes.48 With respect to such lands,49 It shall be unlawful for a landowner or proprietor to construct or maintain a dam or levee which has the effect of obstructing or collecting and discharging with increased force and volume the flow of surface water to the damage of the adjacent owner or proprietor; * * * the provisions of this section shall apply only to lands used for agricultural purposes and highways lying wholly outside the limits of any incorporated city * * *. "As to the treatment of such water on agricultural land we have substituted the civil law for the common law."s0 In passing upon the constitutionality of the statutory change, the supreme court held the legislature competent to adopt the rule of the civil law, providing for disposal of diffused surface water so that its obstruction or accumulation should not operate to the injury of an adjacent landowner.51 (3) Texas has two statutes relating to interferences with diffused surface waters-(a) statutory liability of railroads, and (b) general statutory liability. (a) The railroad statute.-A statute providing for the organization and incorporation of railroads and construction of their roads, originally enacted in "Bruhaw.Bochek, 76 S. Dak. 131, 133-134, 74 N.W. (2d) 313 (1955). See note 43 supra, regarding the recent adoption of the reasonable use rule with respect to drainage in urban areas. "Singleton v.Atchison, T. & S. F. R.R., 67 Kans. 284, 287-291, 72 Pac. 786 (1903). "Goeringv. Schrag, 167 Kans. 499, 500, 207 Pac. (2d) 391 (1949). 49The original statute was enacted by Kans. Laws 1911, ch. 175, now Stat. Ann. § 24-105 (1964). i0Dyerv. Stahlhut, 147 Kans. 767, 770, 78 Pac. (2d) 900 (1938). "Martin v. Lown, 111 Kans. 752, 754-755, 208 Pac. 565 (1922); Skinner v. Wolf, 126 Kans. 158,160-161, 266 Pac. 926 (1928). Another section of the Kansas statutes authorizes landowners to drain their lands, in the course of natural drainage, into channels leading to natural watercourses, or into drains on public highways. Kans. Stat. Ann. § 24-106 (1964). This does not specify the source or sources of water of which the landowner is authorized so to dispose. In one case in which there was a controversy over the right to discharge, into a watercourse, drainage water "that ordinarily would reach such stream in the general course of natural drainage," the water so drained comprised both overflow from the stream and "the natural drainage" of diffused surface water. Horn v. Seeger, 167 Kans. 532, 535, 544, 207 Pac. (2d) 953 (1949). The statute, said the supreme court, "expressly authorizes action of that character." |
