SURFACE WATERS. Waters of a casual and vagrant character, which ooze through the soil or diffuse or squander themselves over the surface, following no definite course. Schaefer v. Marthaler, 34 Minn. 489, 26 N. W. 726, 57 AM. Rep. 73. They are waters which, though customarily and naturally flowing in a known direction and course, have nevertheless no banks or channel in the soil ; and include waters which are diffused over the surface of the ground and are de rived from rains and melting snows, occasion al outbursts of water which in time of fresh et or melting of snows' descended from the mountains and inundate the country, and the moisture of wet, spongy, springy, or boggy ground. See Lessard v. Strain, 62 Wis. 114, 22 N. W. 284, 51 Am. Rep. 715 ; Macomber v. Godfrey, 108 Mass. 221, 11 Am. Rep. 349 ; Barkley v. Wilcox, 86 N. Y. 147, 40 Am. Rep. 519.
Waters that over-flow and continue in a general course back into the regular water course from which they started, or into water course, do not become surface waters. Jefferson v. Hicks, 23 Okl. 684, 102 Pac. 79, 24 L R. A. (N. S.) 214.
Where water, whether coming from springs or rains or melting snows, has flowed over lands of the complainant, in a well-defined channel, for a period of time so long that the memory of men runneth not to the con trary, to and upon lands of an adjoining pro prietor, the court will, by its mandatory in junction, require such adjoining proprietor to remove any obstruction placed upon his lands to prevent such water from flowing to and over his lands ; Schnitzius v. Bailey, 48 N. J. Eq. 409, 22 Atl. 732. The natural flow age of water from an upper estate to a low er one is a servitude which the owner of the latter must bear, though the flowage be not in a natural water course with well-defined banks ; Leidlein v. Meyer, 95 Mich. 586, 55 N.
367 ; Chicago, R. I. & P. Ry. Co. v. Groves, 20 Okl. 101, 93 Pac. 755, 22 L. R. A. (N. S.) 802.
Overflow from a river in time of high wa ter is surface water ; Jean v. Pennsylvania Co., 9 Ind. App. 56, 36 N. E. 159 ; but the su perabundant waters of a river at times of ordinary floods, spreading beyond its banks, but forming one body and flowing within their accustomed boundaries in such floods, are not surface waters which a riparian own er may turn off as he will ; Cairo, V. & C.
R. Co. v. Brevoort, 62 Fed. 129, 25 L. R. A. 527. In agricultural land the natural flow of water from lands of a higher upon those of a lower level cannot be made the subject of an action of damages ; but a different rule applies in towns and cities ; Bentz v. Arm strong, 8 W. & S. (Pa.) 40, 42 Am. Dec. 265 ; McMahon v. Thornton, 5 Super. Ct. Pa. 495.
The owner of the dominant estate is not liable for the hastening of the surface water therefrom, although, it results in the wearing of ditches in the servient estate ; Pohlman v. R. Co., 131 Ia. 89, 107 N. W. 1025, 6 L. R. A. (N. S.) 146; he may increase the volume and accelerate the flow without incurring liabili ty for damages to owners of lower land ; Ma son v. Com'rs Fulton Co., 80 Ohio 151, 88 N. E. 401, 24 L. R. A. (N. S.) 903, 131 Am. St. Rep. 689. If the owner of the lower property could in the exercise of ordinary care, pro tect it, he cannot recover damage for injury by surface waters ; L. & N. R. R. Co. v. Moore, 31 Ky. L. Rep. 141, 101 S. W. 934, 10 L. R. A. (N. S.) 579. If the upper proprietor, in the interest of good husbandry and with out negligence, collects surface water in a ditch and allows it to flow in the natural course of drainage to the lands of his neigh bors, he is not liable therefor ; Flesner v. Steinbruck, 89 Neb. 129, 130 N. W. 1040, 34 L. R. A. (N. S.) 1055. The owner of a city property may protect it from surface water flowing from adjacent land, even to the extent of closing a drain which he discovers to be injurious to his land, and he incurs no liability to the owners of ad jacent lands by injury caused by the water backing upon them ; Levy v. Nash, 87 Ark. 41, 112 S. W. 173, 20 L. R. A. (N. S.) 155. Where a highway was being repaired and culverts were closed through which surface waters naturally drained and surface water thereby accumulated in large quantities upon the property of the dominant estate, the own ers thereof are liable for casting it in a body on to the lower land ; Martin v. Schwertley, 155 Ia. 347, 136 N. W. 218, 40 L. R. A. (N. S.) 160.
See SUBTERRANEAN WATERS; WATERS.