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Show TENNESSEE 697 construction of an embankment by a lower landowner to protect him- self where the flow of water had been greatly increased and concen- trated by the construction of ditches along streets, and the water would flood his land in the absence of these barriers.50 In the construction and operation of a railroad, it is the duty of the railroad company to provide culverts or some other means to provide for the drainage of surface water through the railroad em- bankment.51 However, rights of the upper landowner to drainage over lower lands of another may be lost by the maintenance of an embankment which does not allow for the'drainage of water; and conversely, after a period of 20 years-continuously, without inter- ruption, and with notorious, hostile, and adverse intent-the owner of lower land may acquire a prescriptive easement to back drainage water upon upper lands.52 Although an upper landowner has a right to the natural drainage of surface water from his land onto lower land, he may not dam up or gather the surface water in an artificial manner and discharge it in concentrated or unnatural quantities upon the lower lands.53 Fur- ther, while the upper landowner may alter the natural conditions of his land to protect it from injury from water, he cannot act unrea- sonably to the damage of lower property owners.54 Each overflow of surface drainage water caused by the wrongful obstruction of the water creates a separate and distinct cause of ac- tion for the injured party.55 In order to prevent injury to his prop- erty from the unlawful interference with the natural drainage of sur- face waters, the property owner is entitled to injunctive relief against the party causing the drainage water to discharge upon his property in concentrated quantities, because successive suits for damages would not furnish an adequate remedy.56 4. Ground Water Ground water in Tennessee is classified into two general cate- gories: (a) Underground water flowing in a well-defined stream and (b) percolating ground water. Underground water in a defined and distinct channel is governed by the same rule of law that is applicable to surface streams in Tennessee. That is, the owner of overlying land has the same rights and liabilities as a riparian owner does with respect to a surface stream. This is also true with regard to large bodies of subterranean water located in well-defined strata. It is unlawful to obstruct or di- vert an underground stream to the injury of another landowner but, absent sufficient proof that a well-defined stream exists, a cause of action for damages must fail. Unless a well-defined channel is demon- strated, all ground water in Tennessee is presumed to be percolating.57 50 City of Sweetwater v. Pate, 59 S.W. 480 (Tenn. ch. app. 1900). 51Garriger v. East Tenn. V. & G. R.R. Co., 75 Tenn. 388 (1881). 52 Railway Co. v. Mossman, 90 Tenn. 157, 16 S.W. 64 (1891) ; Davis v. Louisville\ & N.R. Co., 147 Tenn. 1, 244 S.W. 483 (1922). ** Louisville & Nashville Railroad Co. v. Hays, 79 Tenn. 382 (1883). f*8latten v. Mitchell, 124 S.W. 2d 310 (1938). 65 Cincinnati N.O. & T.P. Ry. Co. v. Roddy, 132 Tenn. 568, 179 S.W. 143 (1915); Louisville & Nashville Railroad Co. v. Hays, 79 Tenn. 382 (1883). soDixon v. City of Nashville, 203 S.W. 2d 178 (1947). 67 Tennessee Electric Power Company v. Van Dodson. 14 Tenn. app. 54 (1931); Nashville C. & St. L. Ry. v. Richert, 19 Tenn. app. 446, 89 S.W. 2d 889 (1935). |
