Page:North Dakota Reports (vol. 48).pdf/183

 ing, with methods of disposition and removal. This action is essentially an action concerning the disposition and removal of surface waters, and for damages by reason of failure to properly provide for methods of disposition and removal. It is not an action for the diversion or obstruction of a water course. In such cases the rights of the party injured ordinarily are property rights on which an action may be based for infringement thereof. This is an action for breach of a duty; for lack of care, and for negligent acts of commission or omission. Although it may be the duty of a lower landowner who obstructs or embanks a natural drainway to provide for the natural passage of water; which may be reasonably anticipated in the drainage area concerned, all under the particular facts and circumstances of a particular case, nevertheless such principle of law must be considered in connection with the duty of such landowner in providing means of disposition and removal of surface waters. The rule is not to be construed to mean that a mere runway or drainway is in such case to be considered upon the principles of law that apply to water courses. In such case, the duty that exists is the duty that is imposed upon all landowners concerning the disposition of surface waters.

In enunciating principles of law concerning this duty of the lower landowner, much legal discussion has been had in our American courts concerning the so-termed common enemy rule and the civil law rule. A review of these cases in the aggregate perhaps leads rather to confusion than clarification. The fundamental inquiry involved in the consideration of the principles to be applied is to first ascertain whether the law, under a common-law jurisprudence, considered in connection with the peculiar topographical and climatological conditions of the country, leans toward the easement theory of the civil law, or towards its rejection.

Fundamentally, the landowner, concerning surface waters, has the right to use his own land subject to the so-termed principle, “sic utere tuo ut alienum non ledas.” This is a legal right that also involves a reciprocating legal duty, for breach of which an action may be maintained. Pursuant to the common enemy theory, in its strict application, an artificial obstruction or embankment of a natural runway for the disposition of surface waters may or may not involve a liability dependent upon the application of the “sic utere tuo” principle. Under the easement theory of the civil law, the lower landowner must maintain a servitude for purposes of receiving through natural runways thereupon the natural surface waters of the paramount estate. It is time in this state, for this court to state