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Show 404 MICHIGAN 3.5 Storage Waters, Artificial Lakes, and Ponds A riparian owner, in making a reasonable use of the water of a stream, is entitled to construct a dam across the channel, but he must not interfere with or impair the common right of other riparian landowners in the source. The nature and scope of the right to use water by damming the stream, and the regulatory authority of the State over the construction and operation of dams, are discussed in sections 2.1.b and 3.2.c, above. 3.6 Diffused Surface Waters The Michigan Supreme Court has defined diffused surface water as water created by rain or snow, of a casual or vagrant character, which follows no definite course and has no permanent existence; and has said that diffused surface water loses its character and identity upon reaching a watercourse or other body of water.75 The problems which have arisen in Michigan concerning diffused surface water have related to the disposal of excess quantities of it, rather than conflicts over rights of use. The general rule with respect to the use of these waters in most riparian States is that the owner of the land is entitled to capture and use diffused surface water on his property, but there does not appear to be a case in Michigan which has squarely decided this point. With respect to the drainage or disposal of surface water, Michigan follows the rule that the owner of a higher tract of land has an ease- ment or right to have the surface water from his property drain upon the adjoining lower landowner's property, and that the lower land- owner must accept the natural drainage flow of all such water from the upper lands.76 But the upper landowner cannot channel or con- centrate the drainage from his property in excess of natural flow or volume and cast upon a lower landowner flows and volumes of un- natural proportions.77 A landowner may improve and reclaim his land, even though there is some obstruction of the flow of surface water, but this is a conditional right, requiring the upper landowner to act reasonably and nonnegligently, so that he does not unnecessar- ily cause additional water to flow on the lower estate to its damage.78 As related matter, the owner of land has the right to have diffused surface water flow off his land into an adjoining natural water- course.79 For this part, the lower landowner cannot construct embankments or other obstacles which would interfere with the natural flow of the surface water onto his land, to the detriment of the property above him. In other words, he cannot construct dikes or dams which will cause the surface drainage to be cast back upon the upper land- owner. 80 ™Fenmode, Inc. v. Aetna Casualty & Surety Co., 303 Mich. 188, 6 N.W. 2d 479, (1942) ™ Village of Sand Lake v. Allen, 185 Mich. 1, 151 N.W. 705 (1915) ; Crane v. Valley Land Co., 203 Mich. 353, 169 N.W. 18 (1918) ; Robinson v. Belanger, 332 Mich. 657, 52 N.W. 2d 538 (1952). " Peacock v. Stinchcomb, 189 Mich. 301, 155 N.W. 349 (1915) ; Bennett v. County of Eaton, 340 Mich. 330, 65 N.W. 2d 794 (1954). 78 Launstein v. Launstein, 150 Mich. 524, 114 N.W. 383 (1907) ; Emerald Valley Land Development Co. v. Diefenthaler, 35 Mich. App. 346 (1971). 79 Treat v. Bates, 27 Mich. 390 (1873). » Crane v. Valley Land Co., 203 Mich. 353,169 N.W. 18 (1918). |
