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Show 126 ARKANSAS vation Commission to obtain a permit for the use of surplus diffused surface water. This procedure is reviewed in detail in section 2.1, supra. With respect to the disposal of these waters, the Arkansas Supreme Court has announced that the landowner has the right to defend himself against and fend off diffused surface water as a common enemy, without rendering himself liable-even to the extent of diverting the water back from where it came. However, this right is qualified to the extent that the landowner cannot unneces- sarily injure or damage another for his own protection. In other words, the landowner must act in good faith and without negligence. This same rule applies to flood waters which have escaped from a watercourse.58 A landowner may divert the flow of surface water by levees and drains if he does so in good faith for the reclamation of his land, and if the land could not otherwise be reclaimed by reason- able care and expense, provided he does not unnecessarily obstruct the flow to the injury of an adjoining landowner.59 The owner of land may also drain surface water into a natural watercourse.60 However, in protecting his land, the upper landowner has no right to con- centrate the water and discharge it upon another's land in greater volume or with greater force than would exist under natural condi- tions, so as to unnecessarily damage another landowner.61 But a landowner is under no obligation to construct a ditch on his land to afford better drainage for the lands of another.62 The principles discussed above have been developed in relation to agricultural-or nonurban-areas. It appears that a lot owner in a city has a greater right to defend against surface water than the owner of land outside on urban center. The Arkansas Supreme Court has ruled that in an urban location a landowner is entitled to fill up, elevate, and construct buildings on realty in such a manner as to protect himself against surface water.63 There have been a number of surface water cases decided in Arkansas which relate to the rights and duties of a railroad when constructing an embankment. It is the duty of a railroad, in the construction of an embankment, to provide a means for the drainage of surface water by culverts, bridges, or some other method. A railroad will be liable for the accumulation and overflow of surface water behind an embankment which damages an adjoining land- owner.64 Further, a railroad will be liable for the negligent con- 58 Leader v. Mathews, 192 Ark. 1049, 95 S.W. 2d 1138 (1936) ; Honey v. Bertig Co., 202 Ark. 370, 150 S.W. 2d 214 (1941) ; Dent v. Alexander, 218 Ark. 277, 235 S.W. 2d 953 (1951) ; Duckworth v. Williams, 238 Ark. 1001, 386 S.W. 2d 23)4 (196,5). bo Morrow v. Merrick, 157 Ark. 618, 249 S.W. 369 (1923) ; Linker v. Rachel, 163 Ark. 426, 260 S.W. 440 (1924). «° Lee-Phillips Drainage Dist, v. Beaver Bayou Drainage Dist., 226 Ark. 105, 289 S.W. 2d 192, (1956). 6i Jackson v. Keller, 95 Ark. 242, 129 S.W. 296 (1910) ; St. Louis, I.M. d S.R. Co. v. Magness, 93 Ark. 46,123 S.W. 786 (1909). oa Leader v. Mathews, 192 Ark. 1049, 95 S.W. 2d 1138 (1936). <®Levy v. Nash, 87 Ark. 41, 112 S.W. 173 (1908) ; Timmons v. Clayton, 222 Ark. 327, 259 S.W. 2d 501 (1953). «* Louisville, N.O. <& T.R. Co. v. Jackson, 123 Ark. 1, 184 S.W. 450 (1916) ; Missouri Pac. R. Co. v. Nichols, 170 Ark. 1194, 279 S.W. 354 (1926) ; St. Louis, I.M. <& S.R, Co. v. Magness, 93 Ark. 46, 123 S.W. 786 (1909) ; Missouri Pac. R. Co. v. Parker, 167 Ark. 42, 266 S.W. 959 (1925). |