Elmore County Republican. [volume] (Mountain Home, Idaho) 1910-1915, 1913-10-04
Popular Talks on Law.
THE LAW OF SURFACE WATER


There are times when rain Ia trea-
sured. There are times, in most To-
calities, when rain falls all too abun-
dantly,-so rapidly that the earth
cannot take it up. The passage Of sur
face water and the efforts made to
turn it into fixed channels or block
its passage give rise to not a few
legal disputes between the owners
of adjoining lands. What the law
knows as surface waters" are those
which spread themselves over the
surface of the earth without follow
ing any distinct and fixed channel.
The rainfall which comes upon a
persons property is his own and he
may retain it there for his own uses.
So it is that If the surface water is
deemed Of value to the landowner
he may retain it and his neighbor,
over whose land it would otherwise
have drained, has no legal cause OF
complaint. This applies only to sur
face water and not to fixed and
definite warehouses; of any charac-
ter, which are differently regarded.
But If the surface water Is not a
valuable thing to be carefully retained
and treasured the question arises as
to what means may be taken to dis
pose of the water which sweeps down
the slopes after heavy rains. May
Andrews ditch the surface water that
gathers on his land and discharge
it onto Bakers property, when if left
to it's natural course the slope Of
the land would have carried 1t onto
Collins arm? IL Andrews in no way
interferes with the course Of the sur
face drainage may Collins build a
d Ike which will prevent the surface
water from running from Andrews
property onto his own?
Different states answer these and
kindred questions in different ways.
There are two principal rules which
are followed in deciding these ques-
tons. One rule is technically known
as the civil law rule and is fol
lowed in such states as Illinois, Mich
igan, Ohio, Pennsylvania, California,
Louisiana, Maryland, North Carolina
and Texas. Under this rule the
owner of the land which is higher,
has a right, as against his neighbor
whose land is lower, to have the sur
face water drained off in the natural
manner without distractions. Thus
Collins whose land adjoins Andrew g
must receive the surface flows from
Andrews land in times OF rain and
melting snow, and he has no right te
erect any distractions against II
which will prevent it's flowing from
the higher land.
Other states have adopted what Is
known as the common law rule.
Among these are: New York, Massa
chusetts, Indiana, Minnesota, Nilsson
ri, Virginia, Washington, Wisconsin
Kansas, Maine, Connecticut, Vermont
New Hampshire, Arkansas, Nebraska
New Jersey, New Mexico, Oklahoma
and South Carolina. This rule re
CARDS surface water as a common
enemy and allows each landowner tt
cope with it to his own advantage
Thus the owner Of the land which II
lower may protect his own property
against the surface water, even II
doing so he prevents it coming OF
his land and causes 1t to be forced
back on his neighbours from which
it was accustomed to flow with thu
land In its natural state. 1t Is usual
ly held in these states, however, tina
where a well-defined gully has beel
worn in the soil by the frequent run
ming of water in the same place thi
may not be damned up In such
way as to flood neighbours lands
And in all cases due regard must b.
had for the property rights OF tn
neighbor and nothing must be don
which will unnecessarily injure hi