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Show 360 LOUISIANA number of artificial openings in the channels on the upper property which, it was contended by the defendant, had the effect of diverting more water onto the servient property than it would normally have received if the water had been permitted to drain according to the natural configuration of the properties. The suit was brought to establish the natural servitude of drain- age, and the court held that while the upper owner may make such improvements as will tend to accelerate or hasten the drainage of his land beyond the natural slower process, he cannot throw upon the lower estate the burden of receiving water which would not other- wise drain upon it,61 but the court concluded that the record was barren of any evidence to prove that the amount of water drained onto the lower property was actually increased by plaintiff's im- provements. One dissenting judge felt that there was no evidence that the defendant's land was actually lower than the plaintiff's, a condition which admittedly must exist before the servitude provided for in article 660 can exist. Three judges also dissented from the refusal to grant a rehearing, raising what is perhaps the most interesting point in the case. It appeared that more than 20 years previously, the police jury of the Parish of Pointe Coupee where the land was located had established an extensive parishwide drainage program, financed in part by parish taxes and in part by contributions from the State and Federal Governments.62 Most of the land in the parish had in fact been drained under this plan, and there was evidence that the parish offered to make such improvements as might be necessary to drain plaintiff's property at no expense to him. It was contended, there- fore, that the modern techniques of drainage provided by statute should supersede the ancient servitude prescribed by article 660. As Chief Justice Fournet stated in his dissenting opinion :63 Today, with modern farming practices, little reliance is placed on natural drainage, which in most instances have proven to be completely inadequate. At this time, property owners usually take advantage of modern, efficient, artificial drainage methods and drainage programs, which in most part are designed, engineered and financed by or with the assistance of the local, state and/or Federal Governments. It is regrettable that there was no opportunity to decide the issue posed in the dissenting opinions. Certainly the extent to which both article 660 and article 661 are preempted by more recent legislation dealing with distribution of water by public agencies must remain a matter of concern in Louisiana.64 4. Ground Water Article 505 of the Civil Code provides that the ownership of the soil carries with it the ownership of all that is directly above and under it, and that the landowner: may construct below the soil all manner of works, digging as deep as he deems convenient, and draw from them all the benefits which may accrue, under 61 Relying on Chandler v. City of Shreveport, 169 La. 52,124 So. 143 (1929). 82 Sec. 33:1236(13). « 229 So. 2d at 692. 64 See note 3, p. 11, and accompanying text. |