| OCR Text |
Show VIRGINIA 755 B. COMMON ENEMY DOCTRINE Virginia adopts the common enemy doctrine of the common law: Each landowner may fight it [diffused surface water] off as best he may. He may obstruct or hinder its flow, and may even turn it back upon the land of his neighbor, whence it came * * * He may change the surface of his own land, or erect buildings or other structures upon it, and thus restrain or divert the surface water which may accumulate on adjacent lands from falling rains and melting snows, without being made liable therefore to their owners.92 However, in Virginia-as elsewhere-the right to protect one's land from common enemy waters is subject to some qualification, since the right cannot be exercised: * * * wantonly, unnecessarily, or carelessly; but is modified by that golden maxim of the law, that one must so use his own property as not to injure the rights of another. It must be a reasonable use of the land for its improvement or better enjoyment, and the right must be exercised in good faith, with no purpose to abridge or interfere with the rights of others, and with such care with respect to the property that may be affected by the use or improve- ment as not to inflict any injury beyond what is necessary . . . 93 More specific qualifications say that one cannot collect diffused surface waters and discharge them into an artificial channel in such a manner as to cause damage to others;94 and that, if diffused sur- face water has been accustomed to gather and flow in a pattern so that it erodes and forms a well defined channel, such water cannot be diverted therefrom to the injury of others.95 In determining whether action to divert enemy waters is reasonable, the value of the improvement or structure to be protected (as distinguished from unimproved land) will be relevant.96 C. RIGHTS OF USE Virginia seems to have no cases dealing with the right to use diffused surface waters, but there is a statute which is rather specific: Diffused surface waters may be captured and impounded by the owner of the land on which they are present and, when so impounded, become the property of that owner. Such impoundment shall not cause damage to others.97 4. Ground Water a. percolating ground water The Virginia court has said that percolating waters: * * * are those which ooze, seep, or filter through the soil beneath the sur- face, without a defined channel, or in a course that is unknown and not diisj coverable from surface indications without excavations for that purpose. The fact that they may, in their underground course, at places come together so as to form veins or rivulets does not destroy their character as percolating waters.98 Virginia has no adjudicated cases which spell out the extent to which overlying landowners may use percolating ground water. The 92 Norfolk & W. R. R. v. Carter, 91 Va. 587, 22 S.E. 517 (1895). 93 Id at 592-93. 94 Id. at 593. 95 Id. at 593-94. 96 See, e.g.. Mason v. Lamb, 189 Va. 348, 53 S.E. 2d 7 (1949). wSec. 62.1-105. B8OUnchfleld Coal Corp. v. Compton, 148 Va. 437, 139 S.E. 308 (1927). 499-242-73------49 |
