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Show 300 INDIANA A lower landowner is not required to receive the diffused surface waters flowing from the lands of another and he may build a dike or dam on his own property to protect it from diffused surface waters without incurring liability, even though he may cause the waters to back up or be cast onto the adjoining land causing damages thereto.76 4. Ground Water While many of the Eastern States have classified ground waters as those which either flow in a well-defined channel or percolate through the ground, and have applied different rules to each, Indiana does not recognize this distinction. In an early case, the Indiana court expressly refused to recognize any legal distinction between subterranean waters flowing in a well-defined channel and perco- lating water.77 Also, the Indiana Legislature has statutorily defined ground waters on two separate occasions and did not recognize this distinction on either occasion.78 In the earliest case dealing with ground water in the State, the court applied the absolute ownership rule and said that a person owned the water beneath his land as well as the soil.79 Under this rule, the landowner could use the water found under his property in any way he wished and he could use his land any way he desired even if it impaired his neighbor's use of the ground water found under his property.80 This rule has been tempered somewhat by more recent cases, how- ever, as the court has stated that a person cannot maliciously pump the water from his property and let it go to waste for the purpose of destroying a spring or well on another's property.81 The court has also upheld the constitutionality of an ordinance requiring the cap- ping of a flowing well against the charge that this was a taking of property without compensation.82 As noted earlier, there are some administrative controls over the use of ground waters in limited situations. The Ground Water Con- servation Act of 1951 provides that the Department of Conservation may restrict the use of ground water if it finds that the withdrawal of ground water is exceeding or threatening to exceed the natural replenishment.83 When an area is designated restricted, users, other than those supplying water to cities, may not increase their usage of the ground waters by more than 100,000 gallons per day unless they obtain a permit to do so from the Department of Conserva- tion.84 Each person using over 100,000 gallons of water per day in a restricted area must file a certified statement of the average amount of ground water used prior to the designation of the area as re- 78 Clay v. Pittsburgh G. G. & St. L. Ry. Co., 164 Ind. 439, 73 N.B. 904 (1905) ; Capes v. Barger, 123 Ind., app. 212, 109 N.E. 2d 725 (1953) ; and Thompson v. Dynr, 126 Ind., apo. 70,130 N.E. 2d 52 (1955). 77 City of Oreencastle v. Hazelett, 23 Ind. 186 (1 «64>. 78 Sees. 27-1301 and 27-1407 ; and Valparaiso City Water Co. v. Dickover, 17 Ind., app. 233,46 N.E. 591 (1897). 79 New Albany and Salem R.R. Go. v. Peterson. 14 Ind. 112 (1860). 80 Id. Also, Guy of Oreencastle v. Hazelett, 23 Tnrl. 186 (1.864 K «¦ Oagnon v. French Lick Springs Hotel Co.. 173 Ind. 687. 72 N.E. 849 (1904) 82 Skaggs v. City of Martinsville, 140 Ind. 476. 39 N.E. 241 (1894). 83 Sec. 27-1303. 84 Sec. 27-1305. |