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Show 344 KENTUCKY gent.76 Railroads are not liable for installation of culverts too small to handle the flow if the damage caused by the culvert overflow was due to an extraordinary rainfall.77 While the upper landlord's right to drain surface water over lower lands ordinarily is subject to the limitations noted above, the burden on the lower land may be increased if the upper landowner has adversely discharged additional water over the lower land for tho prescriptive period.78 4. Ground Water For purposes of determining rights to ground water, the Kentucky court has classified ground water as either underground water flowing in a definite channel, or percolating water. a. UNDERGROUND STREAMS Rights in ground water flowing in a definite and well-defined underground stream are governed by the same rules applicable to surface streams, so that each landowner under which an underground stream passes is entitled to his coequal right to the stream. There is an initial presumption that all subterranean waters are percolating but, once a subterranean stream is shown to exist, it is then presumed that it has a fixed and definite course and channel.79 b. PERCOLATING WATERS The Kentucky court has defined percolating waters as those which ooze, seep, or filter through the soil beneath the surface in an un- known course and without any definite channel. Percolating water is considered to be a part of the earth itself, and the right to use this water belongs to the owner of the land.80 However, this ownership is not without some qualification, because the court has stated that the owner of property may only use perco- lating water for those purposes connected with the use, enjoyment, and development of the land itself, and cannot use it for purposes not connected with the beneficial enjoyment of his land.81 Further, the owner of land may not injure the rights of adjoining landowners to these waters by using them in a malicious or unnecessary manner,82 nor may he destroy his neighbor's supply by willfully contaminating the source.83 A right to use water from a well located on another's property may be acquired by adverse use when such use has been maintained throughout the prescriptive period.84 •"> Wallingford v. Maysville & B.8.R. Co., 32 K.L.R. 1049, 107 S.W. 781 (1908); Madisonville, H. d E.R. Go. v. Thomas, 140 Ky. 143, 130 S.W. 975 (1910) ; Hopson v. Downs, 340 S.W. 2d 475 (1960). " Fife v.Chesapeake & O. Ry. Co., 307 Ky. 541. 211 S.W. 2d 854 (1948). ™Riggs v. Ketner, 299 Ky. 754, 187 S.W. 2d 287 (1945). wNourse v. Andrews, 200 Ky. 467, 255 S.W. 84 (1923) ; Commonwealth v. Sebastian, 345 S.W. 2d46 (1961). wNourse v. Andrews, 200 Ky. 467, 255 S.W. 84 (1923) ; United Fuel Gas Co. v. Sawyers, 259 S.W. 2d 466 (1953) ; Sycamore Coal Co. v. Stanley, 292 Ky. 168, 166 S.W. 2d293 (1942). 81 United Fuel Gas Co. v. Sawyers, 259 S.W. 2d 466(1953). 88Long v. Louisville & Nashville R.R. Co., 128 Ky. 26, 107 S.W. 203 (1908) ; Sycamore Coal Co. v. Stanley, 292 Ky. 168, 166 S.W. 2d 293 (1942) ; Associated Contr. Stone Co. v. Pewee Val. San. & Hosp., 376 S.W. 2d 316 (1964). 83 Kinnaird v. Standard Oil Co., 89 Ky. 468, 12 S.W. 937 (1890) ; also see Rogers v. Bond Bros., 279 Ky. 239, 130 S.W. 2d 22 (1939). « McPherson v. Thompson, 28 K.T..R. 266, 89 S.W. 195 (1905). |
