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Show 380 MARYLAND 3.7 Diffused Surf ace Waters Maryland is usually classified as a civil law state so far as surface waters are concerned. An early case announced the rule as follows: The prevailing doctrine in this country seems to be that the owner of the upper land has a right to the uninterrupted flowage of the water and that the proprietor of the lower land has no right to make embankments whereby the current may be arrested and accumulated on the property of his neighbor. This is the rule of the civil law.48 Actually, the rule had been tempered by notions of reasonable use from a fairly early date. The cases have dealt primarily with the right to dispose of surface waters rather than the acquisition of rights to their use. It has been generally assumed that the lower landowner cannot obstruct the natural flow of diffused surface water onto his land. A line of cases beginning in the 1940's embraced what clearly seemed to be the reasonable use approach, at least in the case of urban property.47 The decisions, however, disclaimed any intention to depart from the civil law rule in favor of reasonable use, and con- tended that Che civil law approach was simply being modified.48 However, when the subject came up for review in Boer v. Board of Count1)/ Comrrfrs49 in 1969, the court candidly admitted that the qualification of the civil law rule by the reasonableness concept "has developed into a limitation which is a rule of law in all but name." In Baer, there were in fact three lots of urban land at different levels. The county had installed drainage pipes at the upper levels which had the effect of altering the natural flow of surface waters onto the lowest land. The court felt this was unreasonable because the pipes channelized the water and concentrated it on the lowest tract, whereas much of this water would have been absorbed to some extent on the upper tracts if they had remained in their natural con- dition. The court concluded that an injunction was proper and directed that the county be given the option either to remove the pipes or extend them beyond the lowest tract in order to avoid flood- ing. The case is really no departure from earlier decisions purport- edly following the strict civil law rule. There is no specific measure as to what exactly can be done by adjacent property owners to protect themselves from damage from diffused surface water. As Baer indicated, the upper owner may not materially increase the quantity discharged onto lower lands. Nor has he a right to drain water into an artificial channel or in a different manner than the usual natural course of drainage.50 Where the man- ner of drainage violates these rules, the lower owner is entitled to obstruct the flow.51 One case, involving a suit against a municipality, refused to allow such an obstruction where there was no showing of actual damage to the one building the obstruction.82 Upper landown- «?., W. & B. B.B. v. Davis, 68 Md. 281, 11 Atl. 822 (1888). « Of. Battisto v. Perkins, 210 Md. 542,124 A. 2d 288, 290 (1956). 48 See, e.g., Whitman v. Forneu, 181 Md. 652, 31 A. 2d 630 (1943) ; Sainato v. Potter, 222 Md. 263, 159 A. 2d 632 (1960) ; 21 Md. L. Bey. 88 (1961). « 255 Md. 163, 257 A. 2d 201, 204 (1969). *°Bioerman V. Funkhouser, 190 Md. 424, 58 A. 2d 668 (1940) ; 11 Md. L. Rev. 58 (1950). See also, Baltimore County v. Hunter, 207 Md. 171, 113 A. 2d 910 (1955) ; Neubauer v. Overlea Realty Co., 142 Md. 87,120 Atl. 69 (1923). « Hancock v. Stull, 206 Md. 117,110 A. 2d 522 (1955). k» Kennedy-Ohamberlain Dev. Co. v. Snure, 212 Md. 869, 129 A. 2d 142 (1957) ; 18 Md. L. Rev. 61 (1958). |