Peterson, David L

English

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North Dakota Law Review Volume 44 Number 4 Article 8 1968 Water and Water Courses - Surface Waters - Rights of a Landowner to Drain David L. Peterson Follow this and additional works at: https://commons.und.edu/ndlr  Part of the Law Commons Recommended Citation Peterson, David L. (1968) "Water and Water Courses - Surface Waters - Rights of a Landowner to Drain," North Dakota Law Review: Vol. 44 : No. 4 , Article 8. Available at: https://commons.und.edu/ndlr/vol44/iss4/8 This Case Comment is brought to you for free and open access by the School of Law at UND Scholarly Commons. It has been accepted for inclusion in North Dakota Law Review by an authorized editor of UND Scholarly Commons. For more information, please contact und.commons@library.und.edu. RECENT CASESWATER AND WATER COURSES-SURFACE WATERS-RIGHTS OF A LAND-OWNER TO DRAIN-Plaintiff brought an action against a neigh-boring property owner for damages caused by drainage of surfacewaters onto his property. The defendant then instituted third-partyproceedings against the architect-engineer who planned and super-vised construction of the works and who expressly agreed to assumeresponsibility for all acts of negligence and damage growing outof and from this construction which changed the direction of thesurface waters. The Supreme Court of North Dakota held that theplaintiff could recover damages based on its finding that the plain-tiff's property was flooded as a result of the construction, and thearchitect-engineer did nothing to prevent the flooding after beingwarned of the dangers by the plaintiff. The Court states that itnow adopts the reasonable use rule in regard to the drainage ofsurface waters. Jones v. Boeing Company, 153 N.W.2d 897 (N.D.1967).As North Dakota is an agriculturally oriented state the prob-lem of rights and liabilities of landowners in regard to surfacewater drainage is an often occurring one. It is the purpose of thiscasenote to discuss the various rules concerning surface waterdrainage and specifically the rule adopted by North Dakota.The term surface water was been defined by many courts andthe definitions are far from uniform. A simple definition is watercollected on the surface of the ground,' but a more comprehensivedefinition, often used, is water from rains, springs, or melting snowwhich lie or flow on the surface of the earth but which do not forma part of a well-defined body of water or natural watercourse.2Water which is considered surface water continues to be such untilit reaches a channel or watercourse3 or percolates through theground. 4 Interference with surface water has been the subject of1. Ramsey v. Ketcham, 78 Ind.App. 200, 127 N.E. 204, 205 (1920).2. E.g., Collins v. Wickland, 251 Minn. 419, 88 N.W.2d 83, 87 (1958) ; Sun Under-writers Ins. Co. of New York v. Bunkley, 233 S.W.2d 153, 155 (Tex. Civil App. 1950); Grayv. Reclamation Dist. No. 1500, 174 Cal. 622, 163 P. 1024, 1036 (1917) ; RESTATEMENT OFTORTS § 846 (1939).3. E.g., County of Scotts Bluff v. Hartwig, 160 Neb. 823, 71 N.W.2d 507, 511 (1955);Schomberg v. Kuther, 153 Neb. 413, 45 N.W.2d 129, 137 (1950).4. E.g., Everett v. Davis, 18 Cal.2d 389, 115 P.2d 821, 823 (1941).NORTH DAKOTA LAW REVIEWmany lawsuits and the courts have promulgated three widely di-vergent views as to the effect or liability resulting from such inter-ference. Each of these views will be discussed in some detail inthe material that follows.The common law or "common enemy view" sets forth the propo-sition that surface water will be regarded as a common enemy andeach landowner may take any measures deemed necessary to protecthis land from damage. 5 Under this rule a landowner has the rightto lawfully obstruct or hinder the natural flow of surface waterand he may turn water off his land onto or over his neighbor'sproperty without being held liable for so doing.6 An obvious problemwith the adoption of a rule such as this is that it could promoteembankment building or drainage contests between neighbors whichwould be detrimental to the organized development of proper drain-age and land use. A Texas court has aptly described the commonenemy rule as one having no support of law or reason as it is a ruleof force rather than common justice.7The civil law theory promulgates the view that the control ofsurface water is governed by the law of nature and thereforethe lower landowner is bound to receive the surface water whichnaturally flows from the land above. 8 This view seems to allowthe upper landowner an easement over the property of the lowerlandowner and the jurisdictions following this view justify it bystating that one who purchases or otherwise acquires land shouldexpect and be required to accept it subject to the burdens ofnatural drainage. 9 The civil law view has some rather seriouspitfalls if it is strictly interpreted. This is pointed out by the factthat strict adherence to the principle upon which it is founded,namely, " . . .water flows, and as it flows, so it ought to flow,"' 10would seem to prohibit any drainage improvements on one's land.This would be a logical extension because any drainage improve-ments would necessarily affect the natural water flow, thus violatingthe civil law theory.The third and, in this writer's opinion, best theory is that ofreasonable use. The sum and substance of the rule is set forthin a New Jersey case as follows:• . . [E]ach possessor is legally privileged to make areasonable use of his land, even though the flow of sur-face waters is altered thereby and causes some harm to5. E.g., Soules v. Northern Pac. Ry. 34 N.D. 7, 157 N.W. 823, 826 (1916).6. Walker v. New Mexico & Southern Pac. R.R. 165 U.S. 593, 604 (1877).7. Miller v. Letzerich, 121 Tex. 248, 49 S.W.2d 404, 411 (1932).8. Soules v. Northern Pac. Ry. supra note 5, at 826.9. La Fleur v. Kolda, 71 S.D. 162, 22 N.W.2d 741, 744 (1946).10. Vinson v. Turner, 252 Ala. 271, 40 So.2d 863, 864 (1949).RECENT CASESothers, but [the landowner] incurs liability when his harm-ful interference with the flow of surface waters is unrea-sonable.11The point of contention in jurisdictions following this view revolvesaround what is, or is not, a reasonable use and this must be deter-mined on the facts of each case.12In the instant case the Supreme Court absolutely adopts thereasonable use view for North Dakota after having been classifiedas adhering to the common enemy doctrine since Henderson v.Hines's was decided in 1921. In the instant case the Court states:We believe the reasonable use rule . .. has been well statedand that it represents not so much a change in policy bythis court as a clarification of the rationale followed in priordecisions and that the result reached is a similar one.14An analysis of the North Dakota cases concerning surface watersindicates that the above statement is a most accurate appraisal ofthe situation. An early North Dakota case, prior to Henderson, heldthat, as pertains to surface waters, "... one shall not so use hisown property as to injure another.An analysis of Henderson will certainly not uphold the idea thatNorth Dakota had adopted the strict common enemy rule. The factis that the court stated: ". . . [H]e [the landowner] has theright to possess, use, and enjoy his land subject to the principle,'sic utere tuo ut alienum non laedas.' "'I, which, as mentionedearlier, means one should use his property so as not to harm others.It would seem that, in effect, the North Dakota Court adoptedeither the reasonable use view or a very modified concept of thecommon enemy theory in Henderson. The reasoning behind thisconclusion is that if one must use his property so as not to harmothers it necessarily follows that he may not dam up or drain awaysurface waters as he wishes because his actions may harm a neigh-boring parcel of land. This, therefore, differs from the strict commonenemy theory which gives every landowner the right to dam upand drain away surface waters as he wishes without liability.Because of the restriction attached to the common enemy theory,by the Court in the Henderson case, it appears that North Dakota11. Armstrong v. Francis Corp., 20 N.J. 320, 120 A.2d 4, 8 (1956).12. E.g., Enderson v. Kelehan, 226 Minn. 163, 82 N.W.2d 286, 289 (1948).13. 48 N.D. 152, 183 N.W. 531 (1921).14. Jones v. Boeing Co., 153 N.W.2d 897, 904 (1967).15. Carrol v. Rye Tp., 13 N.D. 458, 101 N.W. 894, 897 (1904), the phrase is derivedfrom the Latin Maxim "Sic Utere Tuo ut Alienun Non Laedas." See also Lemer v. Koble,86 N.W.2d 44, 46 (N.D. 1957).16. Henderson v. Hines supra note 18, at 535.NORTH DAKOTA LAW REVIEWhas, in effect, followed the reasonable use view rather than thestrict common enemy rule. It can logically be said that NorthDakota has followed the reasonable use theory since the "sic utere"principle was set forth in the Rye case in 1904. The language ofthe reasonable use doctrine is present in several other North Dakotasurface water cases prior to the instant case. In Rynestad v.Clemetson17 the court stated:Subject to certain restrictions, and provided he acts reason-ably and with prudent regard for the interests of adjacentowners so as not to increase the burden on the lower owneror injure his property, the upper owner may artificially drainhis land.18 (emphasis added)In a 1967 case the court stated:We see no reason why the general rule which fixes the mu-tual and reciprocal rights and liabilities of adjoining land-owners under the maxim sic utere . . ., requiring that eachuse and maintain his own land in a reasonable manner ....should not apply... [to the facts in this case.] 19 (emphasisadded)Even though this writer feels North Dakota has, in effect,followed the reasonable use theory for many years the fact remainsthat the court has removed all doubt by specifically adopting it inthe instant case and it would be useful to investigate what conceptswill be important for litigants under this theory. As has been statedearlier, the determination of whether or not the action of the land-owner is reasonable or not will depend on the facts and circum-stances of each case. Thus it would behoove every landowner tothoroughly scrutinize the facts and attempt to determine the reason-ability of the action of the various participants before starting adrainage project.Minnesota has also adopted the reasonable use theory and theMinnesota Supreme Court has set forth a test which, if followedby the landowner, will allow the landowner the right to drain hisland of surface waters even if it creates a burden on the land of thelower owner. The Minnesota test allows drainage of surface watersif the following factors are present:a) There is a reasonable necessity for such drainage;b) If reasonable care be taken to avoid unnecessary injuryto the land receiving the burden;17. 133 N.W.2d 559 (N.D. 1965).18. Id. at 563. The Court was using 93 C.J.S. Waters § 116 as authority for this state-ment.19. Roder V. Krom, 150 N.W.2d 708, 710 (N.D. 1967).570RECENT CASESc) If the utility or benefit accruing to the land drained reason-ably outweighs the gravity of the harm resulting to theland receiving the burden; andd) If, where practicable, it is accomplished by reasonablyimproving and aiding the normal and natural system ofdrainage according to its reasonable carrying capacity, orif, in the absence of a practicable natural drain, a reasonableand feasible artificial drainage system is adopted.20The above reasonability test set down in Minnesota would atleast give a North Dakota landowner some idea of what drainagemeasures he may take, under the reasonable use theory, withoutincurring liability.Even though North Dakota has the reasonable use doctrine asto surface waters, the landowner must know the distinction betweensurface waters and waters of a natural watercourse and the dis-tinction is often not easily discernable.21 The distinction is importantbecause a natural watercourse cannot be interfered with under anyof the mentioned doctrines.2 2 The problems entailed in determiningwhat is a natural watercourse is beyond the scope of this casenote,however, a starting point for one who wishes to pursue the makeupof a watercourse is the definition in the NORTH DAKOTA CENTURYCODE which is as follows:A watercourse entitled to the protection of the law is con-stituted if there is a sufficient natural and accustomed flowof water to form and maintain a distinct and definedchannel. It is not essential that the supply of water shouldbe continuous or from a perennial living source. It is enoughif the flow arises periodically from natural causes andreaches a plainly defined channel of permanent character.2 3In conclusion it should be pointed out that it would seem tobe very difficult to promulgate one specific rule concerning drainageof surface water in North Dakota because of the varied topographyof the state which includes the rolling hills of the west and thevery level Red River Valley in the east. It is, however, extremelyimportant that landowners know what rights they have in regardto drainage of surface waters as well planned drainage is essential20. Enderson v. Kelehan supra note 12, at 289.21. The court stated that a natural drainway was involved and it was settled law thatdrainways must be kept open and furthermore they were in no particular hurry to choosea surface water rule because of the peculiar topography and climatic conditions of thestate. Soules v. Northern Pacific Ry. Co., 34 N.D. 7, 157 N.W. 823 (1916). See also Rei-chert v. Northern Pacific Ry. 39 N.D. 114, 167 N.W. 127, 136 (1918).22. E.g., Lemer, supra note 15, at 46; Soules, supra note 5; Aldritt v. Fleischauer, 74Neb. 66, 103 N.W. 1084, 1086 (1905).28. N.D. CET. CoD § 61-01-06 (1960).NORTH DAKOTA LAW REVIEWto good husbandry in an agricultural state and much land can bemade more productive as a result of proper drainage.Because the application of the reasonable use doctrine dependson the facts of each case that comes before the court it can beeffectively used in all parts of the state, thus the North DakotaSupreme Court has followed the best suited doctrine for North Dakota.DAVID L. PETERSONDAMAGES-GROWING CROPS-MEASURE OF DAMAGES FOR INJURYTO GROWING CROPs-The appellant appealed a judgment in favorof the respondent based on claims for damages for the county'snegligent spraying of weed killer onto their tomato crops. Theappellant contends that the trial court did not use the propermeasure of damages in measuring the respondent's loss, claimingthat the proper measure of damages for partial destruction of growingcrops is "the difference between the market value of the cropdestroyed and the cost of producing the crop." The California courtheld, in rejecting this measure and based upon the rule in Rystromv. Sutter Butte Canal Co.,' that the estimated costs of productionmust first be deducted from expected gross receipts to arrive atthe expected net profit. Next, actual costs of production must bededucted from actual receipts to arrive at actual net profit. Finally,deducting actual net profit from expected net profit fixes the actualdamage.2 Solis v. County of Contra Costa, 60 Cal. Rptr. 99 (Ct.App. 1967).The Rystrom case,3 an action for damages in contract, relieson Treller v. Bay River Dredging Co., 4 where the court approveda measure similar to that in Rystrom.The court stated:In cases of destruction of growing crops it is proper andimportant to introduce and admit evidence showing the kindof crops the land is capable of producing, the kind of cropsdestroyed, the average yield per acre of each kind on landnot destroyed, and on similar lands in the immediate neigh-borhood, cultivated in like manner, the stage of growth ofthe crops at the time of injury or destruction, the expenses1. 72 Cal.App. 618, 249 P. 53 (1925). Action by plaintiff to recover damages for lossof crops due to the alleged failure of defendant to furnish water for irrigation purposesduring the years 1921 and 1922 as provided by contract.2. Id. at 55.a. Supra note i.4. Teller v. Bay & River Dredging Co., 151 Cal.App. 209, 90 P. 942 (1907).

Water and Water Courses - Surface Waters - Rights of a Landowner to Drain

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Water and Water Courses - Surface Waters - Rights of a Landowner to Drain

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