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Show surface waters 47 3.7 Diffused Surface Waters a. Definition Diffused surface water, as the term implies, is water diffused or spread out over the surface of the ground, and forms no part of any natural watercourse. These waters most commonly are formed from rain and melting snow; and, even though the water may ultimately drain into a watercourse, it retains its character as diffused surface water until it does reach a watercourse. Flood water which spills over the banks of a watercourse and flows in an uncontrolled or diffused manner over the flood plain is viewed by some States as diffused sur- face water and in other States as fugitive water from a watercourse. The two basic concerns with respect to diffused surface water are rights of use and rights of drainage. i. Rights of Use Nearly every State allows the landowner on whose land diffused surface water is found to capture and use it for whatever purpose he deems appropriate, although the rationale to justify such use does not emerge as a consistent body of law. Some cases speak of a right of capture, such as when one collects rainwater from a roof and funnels it into a barrel or cistern for use. Other cases speak in terms of an inherent right in the owner of the land to capture and use waters which he finds flowing in a diffused nature on the surface of his land, as a right emanating from ownership of the land. Other courts have used a variety or other justifications, but the salient ob- servation is that the States uniformly allow the landowner to use diffused surface waters. Disputes sometimes arise, however, over the factual determination as to whether the surface water is in fact dif- fused or whether it forms a channel and thereby assumes the characteristics of a watercourse. If the former, the upper landowner may capture and detain it; if the latter, then either appropriation doctrines or reasonable use rules apply. c. Drainage Conflicts more often arise with respect to disposing of or drain- ing diffused surface water than they do with respect to rights of use. At the present time, the courts in most of the States allow landown- ers to take reasonable steps to drain, obstruct, or divert diffused sur- face water in order to use, develop, improve, or prevent damage to their own property, but they must act reasonably and without neg- ligence so that they do not cause undue harm or damage to the property interests of others. The question of reasonableness usually depends upon the respec- tive values and interests of the person who drains, obstructs, or di- verts the water and the one who sustains damage as a result thereof. Thus, the rather uniform rule is that landowners may make reasonable improvements in the development and use of their prop- erty, and take reasonable steps to provide necessary drainage, even though some inconvenience may be caused to adjoining landowners, |