| OCR Text |
Show KENTUCKY 343 and which is diffused over the surface of the ground, or which flows vagrantly upon or over the ground surface. It remains such until it reaches a stream or watercourse.65 The statute provides that such water is not to be regarded as public water, and the owner of the ground upon which it is located is entitled to its use.66 This same principle has been announced by the Kentucky court.67 However, the primary litigation concerning diffused surface water has centered upon problems of disposing of these waters rather than rights to use them. Kentucky follows the rule that lower lands are subject to an easement in favor of upper lands to receive the natural drainage of surface water.68 However, the upper landowner cannot collect and release water upon the lower lands in a large volume.69 In one case an upper landowner was allowed to accelerate the flow onto the lower landowner where none of the water had been imported from other watersheds, and where there was not an unnatural volume or an unusually swift discharge.70 But other recent decisions have stated the rule in more restrictive terms, holding that an upper land- owner may be liable for an acceleration in the flow of the surface water even though no other watershed has been tapped. In determin- ing whether liability attaches for acceleration in flow, there is a bal- ancing of factors including the reasonableness of the use of the land drained as against the harm to the land receiving the drainage water.71 This has also been stated to be the rule when surface water is diverted from its natural course of drainage.72 The owner of property who changes the topography of his land in such a manner that surface waters are drained upon lower land not naturally subject to such flow is liable for damages inflicted on such lower landowners.73 But no firm rule emerges, because the court has allowed the discharge of surface water onto lower lands by artificial means when volume is not unusually increased, and yet has found liability when the discharge has resulted in damage to lower lands by greater quantities of water being cast on these lands.71 So, again, the result in each case is determined by balancing the particular equities of the case. From the standpoint of the lower landowner, he cannot create ob- structions which interfere with the natural flow of surface water onto his land, but he need not keep a ditch open to facilitate the flow.75 Railroads have been held liable in construction and operation of culverts under right-of-way fills only when they have been negli- 85 Withers v. Berea College, 349 S.W. 2d 357 (1961) ; Ky. Rev. Stat., sec. 151.100. «« Ky. Rev. Stat., sec. 151.120. w Withers v. Berea College, 349 S.W. 2d 357 (1961). 68 Pickerill v. City of Louisville, 125 Ky. 213, 100 S.W. 873 (1907) ; Klutey v. Common- wealth, Department of Highways, 42S S.W. 2d 766 (1967). ae Franz v. Jacobs, 183 Ky. 647, 210 S.W. 163 (1919). ™Ludlow v. Broderick, 181 Ky. 123, 203 S.W. 1082 (1918) ; Wallace v. Schneider, 310 Ky. 17, 219 S.W. 2d 977 (1949) ; Louisville & Nashville Railroad Co. v. Bush, 336 S.W. 2d 578 (1960) ; Cissel v. Grimes Investments, Inc., 383 S.W. 2d 128 (1964). 71 Commonwealth, Department of Highways v. Baird, 444 S.W. 2d 541 (1969) ; also see Pickerill v. City of Louisville, 125 Ky. 213, 100 S.W. 873 (1907). 72 Commonwealth, Department of Highways v. Robbins, 421 S.W. 2d 820 (1967) ; Klutey v. Commonwealth, Department of Highways, 428 S.W. 2d 766 (1967). 7sBurkshire Terrace, Inc. v. Schroerlucke, 467 S.W. 2d 770 (1971). « Smith V. Wathen, 156 Ky. 820, 162 S.W. 88 (1914) ; Frank v. Dierson, 235 Ky. 229, 30 S.W. 2d 950 (1930). KRooert8on v. Daviess Gravel Rd. Co., 116 Ky. 913, 77 S.W. 189 (1913) ; Johnson v. Chesapeake & Ohio Ry., 208 Ky. 143, 270 S.W. 726 (1925) ; Hopson v. Downs, 340 S.W. 2d475 (1960). |
