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Show 790 WEST VIRGINIA A landowner has a right to divert or make some change in the course of a stream while it is flowing on his property, but he must return it to its natural course before it leaves his property. If he relocates the channel on his land, he must use due care to provide a channel of sufficient capacity to carry not only the normal flow, but reasonably anticipated heavy runoff. The obstruction or diversion of a watercourse by a landowner which restricts the natural flow and causes the water to overflow and damage other land is an infringe- ment of the property rights of such other landowners, and they are entitled to a decree enjoining the obstruction and may obtain judg- ment for the damage suffered.36 Where a natural watercourse is obstructed by bridges, trestles, or culverts, sufficient capacity must be provided to accommodate flood- waters reasonably to be anticipated. Those injured or damaged by neglect of this duty are entitled to recover for damages suffered, unless the flooding which results is considered to be an "act of God" which was the sole and proximate cause of the damage, so that the action of the person making the obstruction in no way contributes to the flooding and resulting damage.37 The application of a similar rule is illustrated by the owner of a log boom, who in the operation of the boom obstructed the natural flow of the stream and thus reduced the water available for use by another riparian landowner and was held liable for the damage caused.38 However, a riparian landowner is entitled to construct and operate a dam across a stream to make use of the water so long as the use made is not unreasonable in relation to the rights of others. The West Virginia cases on this point are few and do not appear to define the extent of the rights between riparian owners to any measurable de- gree. The owner of a milldam has been awarded damage where oper- ation of a log boom impaired the flow of the stream, resulting in a loss of waterpower for the operation of his mill.39 Mills seem to be favored to some extent, and, in construing a grant of water privi- leges, the grant will be construed, whenever possible, to preserve the waterpower of mills already established.40 As a matter of foresee- ability, the builder of a dam is required to take into account general climatic conditions, and to provide for usual or ordinary floodwaters or freshets, but is not required to guard against totally unprecedented floods.41 As water behind a dam may not be unreasonably detained,42 so also the owner of a dam has no right to back the water behind 38 McCausland v. Jarrell, 136 W. Va. 569, 68 S.E. 2d 729 (1951); Humphries r. Black Betsy Consolidated Goal Co., 115 W. Va. 768, 178 S.B. 273 (1934) ; Neat v. Ohio River Railroad Co., 47 W. Va. 316, 34 S.E. 914 (1899) ; O'Dell v. McKenzie, 150 W. Va. 346, 145 S.E. 2d 446 (1965). 37 Riddle v. B. & 0. Railroad Co.. 137 W. Va. 733, 73 S.E. 2d 793 (1952) ; Mitchell v. Virginian Railway Co., 116 W. Va. 739, 183 S.E. 35 (1935) ; Atkinson v. Chesapeake and Ohio Railway Co., 74 W. Va. 633, 82 S.E. 502 (1914) ; Thasher v. Amere Gat* Utilities Co., 138 W. Va. 166, 75 S.E. 2d 376 (1953) ; State ex rel. v. Summers, 143 W. Va. 640, 97 S.E. 2d 295 (1957) MPickens v. Coal River Boom d Timber Co., 51 W. Va. 445, 41 S.E. 400 (1902); 58 W. Va. 11, 50 S.E. 872 (1905) MPicJcens v. Coal River Boom & Timber Co., 51 W. Va. 445, 41 S.E. 400 (1902) ; 58 W. Va. 11, 50 S.E. 872 (1905). ^Miller v. Shenandoah Pulp Co., 38 W. Va. 558, 18 S.E. 740 (1893). „ ^ nnn 41 Trump v. Bluefleld Water Works & Improvement Co., 99 W. Va. 425, 129 S.E. 309 (1925). ** Roberts v. Martin, 72 W. Va. 92, 77 S.E. 537 (1913). |