| OCR Text |
Show 48 SURFACE WATERS so long as the inconvenience is not unreasonable under the particular facts and circumstances. The foregoing generalization indicates an approaching merger of two legal rules that are in substantial opposition to each other. The "common law" rule was that diffused surface water and flood water were common enemies, and that any landowner could fend them off, divert or obstruct them to protect his own property without regard to the consequences to his neighbor. Some of the early cases were not even concerned as to whether the action of the landowner was un- reasonable, negligent, or malicious, so long as he was diverting the surface water from his own land. Later cases required the conduct to be nonnegligent and reasonable under the circumstances. The "civil law" rule recognized flowage easements for all natural drainage patterns, and held that all landowners were subject to these easements. Thus, any particular landowner enjoyed an easement over the land situated below him, and he was entitled to discharge water from his land onto the lower land in the manner provided by nature; however, his land was subject to a similar easement in favor of the owner of the adjacent upland, and he was thus required to receive from the upland whatever diffused surface waters nature delivered. The early cases under the civil law rule adhered rather strictly to natural drainage patterns, and did not permit landowners to alter the natural drainage flows so as to increase the volume or current of the flow, or to divert it into an area or channel other than the natural channel. Later cases allowed reasonable modifications, so that diffused surface water could be obstructed or diverted and collected in drains, ditches and conduits and disposed of in a man- ner that would not unreasonably interfere with the rights of adjoin- ing property owners. However, most States still classify themselves as following either the civil law or common law rule with respect to drainage of dif- fused surface water, and any particular dispute will be resolved in light of the historical development of the particular rule in the par- ticular State. But, as noted at the outset of this section, both rules have been liberalized to the point that the original gap beween the two has been largely closed for all practical purposes. As a matter of present drainage practice, virtually every State has rather comprehensive legislation which authorizes creation of drainage districts to carry out drainage projects within their service boundaries. The structure, organization, and powers of these dis- tricts vary considerably, but it is common for them to have taxing and bonding authority and the power of eminent domain. The most interesting practical difference is that in the humid regions drain- age districts are for the purpose of draining excess waters provided by nature, so that the land may be reclaimed for productive use. In the arid regions, on the other hand, drainage districts frequently are created to provide drainage of irrigation water from farmlands, after the water has been diverted from streams and transported to the farms for irrigation. |
