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Show 288 ILLINOIS With respect to the drainage or diffused surface water, Illinois follows the civil law rule, whereunder the owner of a higher tract of land has the right to drain water from his land upon the adjoin- ing lower landowner, and conversely, the lower landowner is required to accept all diffused surface water flowing from upper lands.85 The upper landowner may, in draining his land, increase the flow of water, so long as it remains in the regular, well-defined drainage channels which carry the water from upper to lower lands.86 But the additional drainage cannot exceed the capacity of the natural drain- age channels.87 Nor can an upper landowner increase the burden on lower lands by constructing new channels for drainage purposes which deliver the water onto the lower land at a place or in a manner different than it would have been delivered naturally.88 In other words, the upper landowner cannot collect the surface water and dis- charge it upon the lower land in undue and unnatural quantities.89 For his part, the lower landowner cannot perform acts on his property which would interfere with the natural flow of the surface water onto his land from above.90 He will be required to remove obstructions which he has created which cause the surface water to be cast back upon the upper lands.91 However, if an obstruction to the natural drainage is adversely maintained by a lower landowner for the prescriptive period, it can ripen into a prescriptive right against the drainage rights of the upper landowner.92 Illinois has adopted a drainage code which supplements the ju- dicial rules on this subject. The right of the individual to construct a drain entirely upon his property without incurring liability for damage is recognized. In addition, the individual is granted the right of eminent domain to extend a drain across another's property in order to obtain a proper drainage outlet.93 4. Ground Water The court decisions relating to ground water rights in Illinois are very limited, and it does not appear that principles relating to the use of ground water are fully defined. Apparently the Illinois courts have never decided a case involving underground water in a well- defined channel. The decisions relate to water which percolates through the soil and is thus characterized as percolating ground water. With respect to percolating waters, the Illinois Supreme Court, in an early decision, stated that percolating ground water belongs to the owner of the soil, and that he may intercept or impede it even though his action interferes with the source of supply for springs 85 Dayton v. Drainage Commission, 128 111. 271, 21 N.B. 198 (1889) ; Mello v. Lepisto, 77 111. app. 2d 399, 222 N.B. 2d 543 (1966). 86 Peck v. Herrington, 109 111. 611 (1884). wPeople v. Peeler, 290 111. 451, 125 N.E. 306 (1919). &Peck v. Herrington, 109 111. 611 (1884) ; City of Peru v. City of LaSalle, 119 111. app. 2d 211, 255 N.E. 2d 502 (1970). *>Wiese v. Mieher, 14 111. app. 2d 126. 143 N.B. 2d 404 (1957). *>Geis v. Rohrer, 12 111. 2d. 133, 145 N.E. 2d 596 (1957). 91 Eberle v. Greene, 18 111. 2d 322, 163 N.E. 2d 822 (1960); Grommes v. Town of Aurora, 37 111. app. 2d 1, 185 N.E. 2d 3 (1962). <* Willis v. Rich, 30 111. 2d 323, 196 N.E. 2d 676 (1964). m Smlth-Hurd Illinois Ann. Stat., ch. 42, sees. 2-1 to 2-12. |