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Show 556 DIFFUSED SURFACE WATERS In an excellent law review article published in 1940,94 it was pointed out that the reasonable use rule differs markedly from the strict civil law and common enemy rules, in that each possessor of land is legally privileged to make a reasonable use thereof, even though the flow of surface waters is altered thereby and causes some harm to others, liability being incurred only when his harmful interference with the flow is unreasonable under the circumstances. This rule often does not purport to lay down any specific rights or privileges. Each case is usually decided on its own facts in accordance with pragmatic concepts of fairness and common sense. In a 1963 case, the Alaska Supreme Court said: * * * we adopt the rule of reasonable use with respect to one's right to drain his land of surface waters. That rule, as stated by the New Jersey Supreme Court, provides "that each possessor is legally privileged to make a reasonable use of his land, even though the flow of surface waters is altered thereby and causes some harm to others, but incurs liability when his harmful interference with the flow of surface waters is unreasonable".95 And in its syllabus in a 1967 case the North Dakota Supreme Court stated: The casting of surface waters from one's own land upon the land of another under circumstances where the resulting damage was foreseen or foreseeable, is tortious and liability results if the interference with the flow of surface waters is found to be unreasonable under the "reasonable use" rule. The issue of reasonableness or unreasonableness is a question of fact to be determined by a consideration of all the relevant circumstances.96 surface water have been governed by that or some similar statute and we have not reexamined our common law rule in the light of developments in other jurisdictions." Id. at 325. See the discussion at note 67 supra, regarding the common law rule and at notes 55-62 supra, regarding art. 7589a of the Texas statutes. The Utah Supreme .Court in a recent case also adopted the reasonable use rule of the "Restatement of Torts" § 833. Sanford v. University of Utah, 26 Utah (2d) 285, 488 Pac. (2d) 741, 743-745 (1971). The "Restatement of Torts" § 833, was referred to in Garbarino v. Van Cleave, 214 Oreg. 554, 330 Pac. (2d) 28 (1968), as discussed at notes 84 and 85 supra. 94Kinyon, S. V., & McClure, R. C, "Interferences with Surface Waters," 24 Minn. Law Rev. 904 (1940). 95 Weinberg v. Northern Alaska Dev. Corp., 384 Pac. (2d) 450, 452 (Alaska 1963), quoting in part, Armstrong v. Francis Corp., 20 N.J. 320, 120 Atl. (2d) 4, 8 (1956). 96 Jones v. Boeing Co., 153 N.W. (2d) 897, 899-900 (N. Dak. 1967). See also the court's discussion at pages 903-904, drawing upon Armstrong v. Francis Corp., 20 N.J. 320, 120 Atl. (2d) 4 (1956). In Jacobsen v. Pedersen, 190 N.W. (2d) 1, 7 (N. Dak. 1971), the court said inter alia: "We will reaffirm the reasonable use rule that we adopted in Jones v. Boeing Company, 153 N.W. 2d 897 (N.D. 1967), as this rule is stated and explained in Armstrong v. Francis Corp., 20 N.J. 320, 120 A. 2d 4 [1956], and Enderson v. Kelehan, 226 Minn. 163, 32 N.W. 2d 286 (1948) [in which, said the court, the reasonable use rule |