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Show LOUISIANA 359 flows onto lands of others, then he is limited to reasonable and natural uses, and must return the water to the channel after use. 3.7 Diffused Surface Waters Louisiana was the first State in the United States to apply the civil law rule as a basis for deciding disputes between adjacent landowners as to diffused surface waters.56 Article 660 of the Civil Code provides as follows: It is a servitude due by the estate situated below to receive the waters which run naturally from the estate situated above, provided the industry of man has not been used to create that servitude. The proprietor below is not at liberty to raise any dam, or to make any other work, to prevent this running of the water. The proprietor above can do nothing whereby the natural servitude due by the estate below may be rendered more burdensome. Clearly, this provision gives the upper landowner a servitiude in lower land only for natural drainage.57 The principal problem under the codal provision is the extent to which the superior landowner may drain diffused surface water onto lower land by artificial means. The early case of Martin v. Jett,58 while acknowledging the right of the upper landowner to improve his land for agricultural purposes, refused to permit him to collect surface water by means of ditches and discharge it upon adjoining land. It was not until 1882 in the leading case of Ludeling v. Stubbs™ that the superior owner's priv- ilege was more clearly defined. There the court stated: The owner of the superior estate may make all drainage works which are necessary to the proper cultivation and to the agricultural development of his estate. To that end, he may cut ditches and canals by which the waters running on his estate may be concentrated, and their flow increased beyond the slow process by which they would ultimately reach the same destination. But the owner of the superior estate cannot improve his lands to the injury of his neighbor, and thus he will not be allowed to cut ditches or canals, or do other drainage works by which the waters running on his lands will be diverted from their natural flow, and concentrated so as to flow on the lower lands of the adjacent estate at a point which would not be their natural destination, thus increasing the volume of water which would by natural flow run over or reach any portion of the lower adjacent estate, or to drain over his neigh- bor's lands stagnant waters from his, and to thus render the servitude due by the estate below more burdensome. The problem has most recently been considered in Nicholson v. Holloway Planting Go.,60 which reflects a rather sharp disagreement among the members of the court as to the proper scope of article 660. Flood waters from a bayou crossed plaintiff's upper land, forming natural crevasse channels which in places were separated when the flow of the water encountered trees or land at a higher level, and then drained water across defendant's lower plantation. This natural pattern of drainage had a braided appearance, and between the braided channels on plaintiff's land small basins were created which trapped rain as it fell upon the upper land. The plaintiff made a 56 S. Klnyon and R. McClure, Interferences With Surface Waters, 24 Minn. L. Rev. 891, 895 (1940). wSee Elam v. Oortinaa, 219 La. 406, 53 So. 2d 146 (1951) (natural drainage is that which was originally provided by nature by reason of the respective location of situation of the properties). 68 12 La. 501 (1838). » 34 La. Ann. 935, 937-38 (1882). » 255 La. 1, 229 So. 2d 679 (1969). |
