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Show 552 DIFFUSED SURFACE WATERS volume, or otherwise more injuriously either on or under the surface of the ground.79 In a 1967 case, the court said, "The modified civil law rule which has been adopted by Colorado has been summarized as follows: Natural drainage conditions may be altered by an upper proprietor provided the water is not sent down in manner and quantity to do more harm than formerly. City of Boulder v. Boulder and White Rock Ditch and Reservoir Co., 73 Colo. 426, 216 P. 533 [1923] * * *."80 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. By the great weight of authority in these jurisdictions that had adopted the civil law rule, the owner of the upper land may accelerate the flow by such drainage system as may be required by good husbandry, without liability for damages to the owner of the lower land if the water is not diverted from its natural channels.81 The court acknowledged that "The rule of the civil law regarding surface waters is now firmly established as the law of Oregon."82 To support this statement, the supreme court cited certain cases of its own and quoted from several opinions. One reads in part as follows:83 The defendant as a land owner had the right to turn or expel, upon the land of an adjacent owner, surface water that would naturally flow there, and in such quantities as would naturally drain in such direction, without liability for damages. * * * The owner of upper lands is not prohibited by the rule from cultivating his lands or draining them by artificial ditches, though surface water is thereby precipitated more rapidly upon the lands of the adjacent owner below, provided he does not cause water to flow on such lands which, but for the artificial ditches, would have flowed in a different direction, and provided he acts with a prudent regard for the interests of such adjacent owner. Toward the end of the opinion in this case, the Oregon Supreme Court commented that "The 'prudent regard' expressions would seem to be more consonant with the reasonable use rule regarding surface waters adopted by the Restatement (Torts, § 833, p. 269) than with either the common enemy rule or the rule of the civil law."84 The reaction of the court to this expression was "Canon City & Cripple Creek R.R. v. Oxtoby, 45 Colo. 214, 217-218, 100 Pac. 1127 (1909); Boulder v. Boulder & White Rock Ditch & Res. Co., 73 Colo. 426, 430-431, 216 Pac. 553 (1923). "Hankins v. Borland, 163 Colo. 575, 431 Pac. (2d) 1007, 1010 (1967). "Garbarino v. Van Cleave, 214 Oreg. 554, 558-559, 330 Pac. (2d) 28 (1958). "214 Oreg. at 556. b214 Oreg. at 556-557, quoting from Rehfuss v. Weeks, 93 Oreg. 25, 32, 182 Pac. 137 (1919). "214 Oreg. at 561. The "Restatement of Torts" § 833 is discussed under "Rule of Reasonable Use," infra. |