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Show Mississippi 433 Subject to the above exceptions, any person desiring to build a dam or reservoir on any watercourse must not only obtain a permit from the Board for the water appropriated to use, but must also secure a written statement from the board that the construction will not adversely affect plans for the proper utilization of the water resources of the State.78 3.6 Springs The Mississippi Water Code provides that: Nothing herein shall operate to deprive any landowner of the right to the use of water from a spring arising on his land, so long as such use does not interfere with the right of any water user below.79 However, it is assumed that when a spring flows into and forms a part of a watercourse, it is then subject to the permit system and the landowner must obtain a permit in order to protect any use which he may wish to make of the spring. Otherwise, permits issued for downstream use ultimately could call for the entire flow of the spring to satisfy the permit requirements, and at that point the owner of the land where the spring arises could not use water from the spring because such use would interfere with rights of water users below. 3.7 Diffused Surface Waters An early case held that an upper landowner had the right to expect that diffused surface water would pass across adjoining lower land according to the natural flow pattern, but that the lower owner could fend off such water if he could do so without unnecessary injury to the upper owner. The lower owner could not build a brick wall which collected the water in a pool on the upper land if he could, at the same expense, construct a drain which would channel the water off his land.80 The case has generally been regarded as an application of the "modified" common-enemy rule. Two later cases added the admonition that the upper owner was not entitled to collect the water in artificial channels and discharge it in a greater volume than would have occurred if the land had been left in its natural condition. When this happens, the lower owner may build a dam to fend off the increased flow of surface waters.81 These rules have occasionally been summarized in terms of a "servitude" which the upper owner has in the lower land.82 This more nearly coincides with the language of the civil law rule. The most recent decisions hold that if the diffused surface water naturally drains into a watercourse on the lower land, the upper owner may in fact increase the flow into the watercourse as a reason- able exercise of his right of drainage. This is true even though the natural capacity of the watercourse is exceeded.83 This seems to be a reaffirmation of the modified common-enemy rule. w Sec. 5956-20. to Sec. 5956-04(a). MHolman v. Richardson, 115 Miss. 169, 76 So. 136 (1917), cited with approval in Cowan v. Baker, 227 Miss. 828, 87 So. 2d 74 (1956). «• Steed v. Kimbrough, 197 Miss. 430, 1 So. 2d 925 (1944) ; Palmer v. Massengill, 214 Miss. 379, 58 So. 2d 919 (1952). 82 Newton Ooca Cola Bottling Co. v. Murphrey, 212 Miss. 823, 55 So. 2d 485 (1941). ^Lauck v. Gilbert, 252 Miss. 371, 173 So. 2d 626 (1956) ; Homes, Inc. v. Anderson, 235 So. 2d 680 (Miss. 1970). Cf. Haisch v. Southaven Land Co., 274 F. Supp. 392 (N.D. Miss. 1967) (drainage problems between riparian owners on a natural watersource). |
