Issue: What doctrine of surface water interference should be applied to cases where
improvements made by adjacent landowners cause water damages to each other?
Holding: Reversed. The court will employ the “reasonable use test” which is not
specifically stated in the jury instruction.
-Originally there were two doctrines for dealing with interference of surface waters. The
common enemy doctrine, which stipulates that landowners have an unlimited privilege to
deal with the surface water on their lands as they please without regard to the harm which
may case others and the
– civil law rule, which recognizes that higher elevations tracts have an easement or
servitude over lower tracts for all surface water that naturally flows downhill but
maintains that anyone who increases or interferes with the natural flow of surface waters
so as to cause invasion of another’s interests was subject to liability to the other.
– Both doctrines are imperfect because while the former carried the potential for self-help
engineering contests to see who was better at placing water on the others land, the latter
impeded the development of land by both parties.
– A third, more viable option is the reasonable use doctrine which allows that a possessor
of land is not unqualifiedly entitled to deal with surface waters as he pleases nor is he
absolutely prohibited from increasing or interfering with the natural flow of surface
waters to the detriment of others. Liability is only incurred when harmful interferences
with the flow of waters is unreasonable. This doctrine is less predictable and more
adaptable to real-life case by case decisions than arbitrary property laws
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