72 Neb. 207 | Neb. | 1904
An injunction was applied for to restrain defendant from diverting surface water onto plaintiff’s premises, and, from an order denying the application and dismissing
The common law rule as to the control and disposition of surface water is in force in this state. ■ In fighting the common enemy, however, the rights of other landed proprietors are to be regarded. The upper proprietor may not act in a negligent manner. He may by artificial channels drain mere surface waters accumulated in ponds, lagoons or basins and throAV them in greater quantities into a natural surface water channel or draAV and onto an adjoining estate, even though the flow in such natural drain is thereby increased on and over the lower estate. He cannot divert the water in a different direction but must conduct it according to the natural course of drainage, and AVhen such is done there is no legal wrong committed.
The following principles are, we think, fairly deducible from the authorities cited: 1. An owner has the undoubted right to protect his land from mere surface Avater and, in the interest of good husbandry, to drain lagoons or basins
The conclusion reached by the district court, as evidenced by its judgment, is supported by the prior decisions of this court, and is in harmony with the general principles governing the control of surface waters, and the same, therefore, should be, and accordingly is,
Affirmed.