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Show MINNESOTA 419 if reasonable care is used and if others are not subjected to unreason- able harm. The cases since that time, for the most part, have talked in terms of "reasonable use," " and by 193476 that rule seemed firmly entrenched in Minnesota water law. The subject was again reviewed in 1958 in Collins v. WicMandf7 where the facts revealed that prior to 1950 surface water had natur- ally drained from higher levels across the land of the plaintiff and then over defendant's land in a channel which varied in width from a few inches to about 3 feet, and in depth not more than 9 inches. The flow was not constant but varied with the amount of rainfall. In short, the drainage was a small "natural depression" which flowed several hundred feet across the lands of both parties. In 1950, the defendant filled in the basement ruins of an old building which had burned down and converted his vacant tract into a parking lot, and, as a result, the channel was eliminated and the ground level was raised several feet above plaintiff's land. Although the defendant in- stalled a drainage pipe, it was not sufficient to carry the surface water after unusually heavy rains-the result of this was that plaintiff's basement was seriously flooded, damaging equipment used in his trade. On appeal, the court devoted much of its opinion to the dis- tinction between natural watercourses and diffused surface waters, and then observed:78 What law of liability governs the obstruction or diversion of a flow of water, however ancient, should not automatically turn upon the rigid classifica- tion of the flow as a natural watercourse without regard to the flow's physical characteristics in terms of volume, topography, or continuity. This court, on more than one occasion, has declined to determine whether a flow of water should be classified or defined as a natural watercourse, but has instead, for the purpose of applying the rule of liability for injury resulting from its obstruction or diversion, considered more important the physical characteristics of the flow. This, then, clearly means that reasonable use governs all types of surface water, whether in watercourses or diffused on the ground. The court in its official syllabus borrowed language from Kinyon and McClure:79 The issue of reasonableness or unreasonableness is a question of fact to be determined in each case upon a consideration of all the relevant circumstances including such factors as the amount of harm caused, the foreseeabality of the harm on the part of the possessor making the alteration in the flow, the purpose or motive with which he acted, and others. The above statement indicates that reasonable use is now to be gov- erned by the usual rules relating to tort liability.80 Under this ap- proach, and as a general rule, the upper landowner who improves his property in a reasonable manner, considering its location (urban as distinguished from rural), is going to prevail over damaged lower w See S. Kinyon and R. McClure, note 71 at 911, note 101. ™Bush V. City of Rochester, 191 Minn. 591, 255 N.W. 256 (1934). The court also Indicated that it might apply a reasonable use rule to a consumptive use of diffused surf ace water. "251 Minn. 419, 88 N.W. 2d 83 (1958). See also Enderson v. Kelehan, 226 Minn. 163, 32 N.W. 2d 286 (1948). w 88 N.W. 2d at 86-7. re Id. at 84. The article is quoted in the opinion. 80 This interpretation was placed on the Minnesota cases in Armstrong v. Francis Corp., 20 N.J. 320, 120 A. 2d 4 (1956). 499-242-73------28 |
