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Show KANSAS 329 land, but without occupying any distinct channel.124 Such water is normally generated from falling rain or melting snow. Once diffused water enters a watercourse, it loses its identity as surface water and becomes water of the watercourse. The Kansas Court has treated the overflow from a watercourse which is permanently separated from the stream as diffused surface water.125 It does not appear that there are any Kansas cases squarely decid- ing the question of the right to use diffused surface water, but there are statements in some early decisions which suggest that the land- owner may use all of the diffused surface water accumulating on his land.126 The language of the water code seems to be broad enough to make all unallocated water subject to appropriation, although apparently there has not been any interpretation of the act in this regard. With respect to the disposal of diffused surface water, Kansas early adopted the common enemy rule which allowed the landowner to treat this source of water as a common enemy and obstruct or divert the flow of water without liability.127 However, in 1911, the legislature modified this rule with regard to the flow of surface water on agricultural lands. This statute provides, in part, that: It shall be unlawful for a landowner or proprietor to construct or maintain a dam or levee which has the effect of obstructing or collecting and discharging with increased force and volume the flow of surface water to the damage of the adjacent owner or proprietor; * * * Provided, That the provisions of this section shall apply only to lands used for agricultural purposes and highways lying wholly outside the limite of any incorporated city: * * *ni Thus, under the current rule, a lower landowner of agricultural lands cannot construct a dam or levee to obstruct the flow of diffused surface water and damage an upper landowner. Conversely, an upper landowner cannot, by artificial means, divert diffused surface water from his land onto another's lands-nor may he artificially increase its flow to the injury of a lower owner. The Kansas Supreme Court has upheld this statute against an attack upon its constitutionality, stating that it was proper for the legislature to provide that the disposal of diffused surface water should be accomplished in such a manner that it would not injure adjacent landowners.129 Another statute authorizes landowners to drain their lands into channels leading to natural watercourses or into drains on public highways.130 Also, there is a statutory provision which allows the owner of any land saturated by seepage waters from water works to drain this water into any natural stream, arroyo, or watercourse.131 u*Gibbs v. Williams, 25 Kan. 214 (1881) ; Dyer v. Stahlhut, 147 Kan. 767, 78 P. 2d 900 (1938). 125 Broadway Mfg. Go. v. Leaventoorth Terminal By. & Bridge Co., 81 Kan. 616 Pac. 1034 (1910). ™Gibb8 v. Williama, 25 Kan. 214 (1881) ; Kansas Gity & Emporia B.B. v. Riley, 33 Kan. 374, 6 Pac. 581 (1885). 127 Atchison, Topeha & Santa Fe B.R. v. Hammer, 22 Kan. 763 (1879) ; Missouri Pacific By. v. Keys, 55 Kan. 205, 40 Pac. 275 (1895) ; Martin V. Lown, 111 Kan. 752, 208 Pac 565 (1922) but see Baldwin v. Gity of Overland Park, 205 Kan. 1, 468 P. 2d 168 (1970). 128 Sec. 24-105. m» Martin v. Lown, 111 Kan. 752, 208 Pac 565 (1922) ; also see Skinner v. Wolf, 126 Kan 158, 266 Pac. 926 (1928). "° See. 24-106. *a Sees. 42-353, 42-354. |