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Show ALABAMA 83 not unreasonable and so long as the use by the owner of the dam is reasonable; and a dam is not to be considered a nuisance per se un- less it is negligently constructed or maintained.51 However, a nuisance might be proved even though a dam is not negligently constructed or maintained, as where a dam prevented the natural drainage of surface water from upstream lands and further caused seepage and percolation to the damage of adjacent property, although the nui- sance was a permanent private nuisance and was not abatable.52 In most instances, however, impounding water so as to cast it upon or overflow lands of another is a trespass and a nuisance which is abatable, irrespective of proof of irreparable injury.53 Since railroads seem to be held to more stringent standards, their dams across streams which obstruct flows and cause flooding are frequently de- clared to be nuisances.64 Obstructions other than impounding dams have been considered in a number of cases. A landowner wasneld to be liable when he con- structed an embankment on his own land but which had the effect of altering the flow of the stream and flooding lower land.55 The court has said that an obstruction which serves no useful purpose will give rise to an injunction and damages;56 and that the test of liability will not be whether the obstructor acted negligently, but whether the complainant has suffered substantial damage.57 As an aside, it has been held that a flowage easement, purchased in connection with a dam and impoundment, impliedly creates a right to enjoy and use the impounded waters whicn overflow the lands of the grantor, including the right to fish on such over- flowed lands and to have access on lands of the grantor adjacent to such overflowed water-at least where the conduct of the parties over the years confirmed such construction of the easement.68 3.6 Springs Alabama has no particular body of statutory or case law dealing with springs. Since the courts have applied rules of reasonable use to surface watercourses as well as percolating ground water, it seems that reasonable use rules must likewise apply to springs. If springs are tributary to surface watercourses, then they clearly are part of such watercourses; and, whether the source of supply for the springs is an underground stream or percolating ground water, both the springs and the source of supply would be subject to reasonable use rules. If a spring arises on property of a landowner, and neither leaves his property nor contributes to a surface watercourse, then it is likely that the landowner could capture and use the waters of the spring in much the same manner as diffused surface water, al- though, as noted above, the source of supply to the spring would be subject to reasonable use by others. The Alabama court has held that 81 Sl088-8heffleld Steel & Iron Go. v. Wilson, 183 Ala. 411, 62 So. 802 (1913). M Goodyear Tire & Rubber Co. v. Gadsden Sand & Gravel Co.. 248 Ala. 273, 27 So. 2d 578 (1046). s3 Bobo v. Young, 258 Ala. 222, 61 So. 2d 814 (1952). 64 Central of Georgia Ry. Co. v. Champion, 160 Ala. 517, 49 So. 415 (1909). m 8los8-8heffleld Steel d Iron Co. v. Mitchell, 167 Ala. 226, 52 So. 69 (1909). »»Barber Pure Milk Co. V. Young, 38 Ala. App. 13, 81 So. 2d 324 (1955). w Mobile & O. R. Co. v. Red Feather Coal Co., 218 Ala. 582, 119 So. 606 (1928). « Hill v. Davis, 272 Ala. 166,130 So. 2d 39 (1961). 499-242-73------7 |