| OCR Text |
Show INDIANA 299 this provision.67 Also, dams constructed for purposes of hydroelectric power generation under the jurisdiction of the Public Service Com- mission; and all levees, dikes, or floodwalls under single private ownership and providing protection only to the property of the owner, are exempt from the regulatory control of the Commission.68 3.6 Springs There are no cases in Indiana dealing with the right to use the waters of a spring. The general rule applied to springs is that if the waters are the source of a watercourse they are governed by the riparian rights doctrine and the owner of the lands upon which the spring arise is limited to a reasonable use of the water. But if the waters of a spring do not form a watercourse, the person upon whose land the water is found may use it as he desires. 3.7 Diffused Surface Waters Diffused surface water is generated from falling rain or melting snow and is diffused or flowing vagrantly over the surface of the earth.69 The Indiana court has also stated that flood waters which permanently leave the channel of a stream and become diffused over the land are no longer treated as waters of a watercourse, but become diffused surface waters.70 The Indiana Legislature has provided that the owner of land upon which diffused surface water falls or flows has the right to use it.71 However, most of the concern over diffused surface water in Indiana involves the problem of disposing it rather than the right to use it. The owner of land upon which surface waters are located may drain the waters and discharge them into natural channels or water- courses if he does not increase the flow of the watercourse so as to unnecessarily or unreasonably injure other landowners.72 The owner of upper or higher lands may allow diffused surface water to flow onto the lands of another in its natural manner and in natural quantities, but he may not alter the natural conditions so as to change the course of the water or concentrate it at a particular point or by artificial means increase its volume.73 If an upper landowner does alter, increase, or concentrate the flow of the waters discharged onto another's land, he may be held liable for damages caused by his actions.74 An upper landowner may also be held liable for polluting the diffused surface waters and allowing it to drain onto the lands of another causing damage.75 « Sec. 27-1804. 88 Id. 69 Sec. 27-1407(3) and Gapes et al. v. Barger et al., 123 Ind., app. 212, 109 N.E. 2d 725 (1953). ™New York C. & St. L. R. Co. v. Hamlet Hay Co., 149 Ind. 344, 47 N.E. 1060 (1897). n Sec. 27-1402. ™Lowe v. Loge Realty Co., 138 Ind., app. 434. 214 N.E. 2d 400 (1966) ; and Smith v. Atkinson, 133 Ind., app. 430, 180 N.E. 2d 542 (1962). ™GuHnn v. Myers, 234 Ind. 560, 129 N.E. 2d (1955) ; and Watts v. Evansville, Mt. C. & N. R. Co., 191 Ind. 27, 129 N.E. 315 (1921). « Smith v. Atkinson, 133 Ind., app. 430, 180 N.E. 2d 542 (1962). •re Niagara Oil Co. \. Jackson, 48 Ind., app. 238, 91 N.E. 825 (1910). |
