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Show WEST VIRGINIA 793 upper lands. The upper landowner, in the use of his land, may even change or increase the flow upon lower lands so long as the water is not collected and discharged in great volume on the lower property ;60 but where surface waters are discharged onto lower land in an artificial manner which increases the burden on the lower land to its damage, the upper landowner is liable.61 Liability does not extend to incidental surface water which is cast off in the im- provement of land, but the landowner cannot "collect and dis- charge" it upon his neighbor.62 A lower landowner cannot block the natural drainage from upper land by raising the grade of his prop- erty and thereby flooding adjoining land.63 If all the necessary ele- ments are present, a prescriptive easement can be acquired to main- tain a drainage ditch over another's land.64 In connection with railroad right-of-way fills, the court has ruled that a railroad company is liable for negligent construction where it causes an overflow on another's land because culverts are inade- quate to carry the surface runoff.85 4. Ground Water There has been very little litigation in West Virginia concerning the right to use ground water. However, it appears that in determin- ing rights to ground water, it must first be classified as either (a) ground water flowing in well-defined channels, or (b) percolating ground water. The West Virginia court has stated that ground water is presumed to be percolating water until it is shown to exist in known and well- defined channels, and that one claiming that a channel exists must prove it. However, once it is established that the water is moving in a well-defined channel, then the same rules of law apply to the use of such water as apply to the use of surface streams.66 Percolating waters are underground waters which do not move in known or definite channels, but ooze and percolate through the earth. West Virginia has rejected the common law rule which vests absolute ownership of such water in the owner of the soil, and has declared that each landowner is limited to a reasonable and beneficial use of the water so as not to deprive adjacent landowners of the use of a portion of such waters on their lands. The courts have not fully defined what is encompassed within the concept of reasonable use, but has stated that what is reasonable must be determined from the facts and circumstances of each case, and it seems that a use for any legitimate purpose by the overlying landowner for the enjoy- ment of his land would be reasonable. Waste of the water would 60 Jordan v. City of Benwood, 42 W. Va. 312, 26 S.E. 266 (1896) ; McCaoe v. City of Parkersburg, 138 W. Va. 830, 79 S.E. 2d 87 (1953). al Knight v. Brown, 25 W. Va. 808 (1885) ; Tracewell v. County, 58 W. Va. 283, 52 S.E. 185 (1905) ; Hargreaves v. Kimberly, 26 W. Va. 787 (1885) ; Manley v. Brown, 90 W. Va. 564. Ill S.E. 505 (1922). 82 Lyons v. Fairmont Real Estate Co., 71 W. Va. 754, 77 S.E. 525 (1913); Linda- mood v. Board of Education, 92 W. Va. 387, 114 S.E. 800 (1922). MTierney v. Earl, 153 W. Va. 790, 172 S.E. 2d 558 (1970). <*Paden City v. Felton, 136 W. Va. 127, 66 S.E. 2d 280 (1951). 83 Henry v. Ohio River R. Co., 40 W. Va. 234, 21 S.E. 863 (1895) ; Kirk v. NorfoW & Western Railway Co., 119 W. Va. 622, 196 S.E. 501 (1938) ; Taylor v. Baltimore & O.R. Co., 33 W. Va. 39, 10 S.E. 29 (1889). w Pence v. Carney, 58 W. Va. 296, 52 S.E. 702 (1905). |
