Columns / Legal Issues / Kline: Unmistakable Marks
Unmistakable Marks

Go With the Flow

This ruling was rather unusual in at least two respects. It overturned a doctrine that had been recognized in Missouri since the 1880s and expanded the doctrine beyond the application to surface flow because it dealt primarily with flood control measures along the Missouri River. This opinion was sufficiently contentious to spark a lengthy article in the Missouri Law Review.11 

California courts recently described the “modified civil law rule” in a very succinct manner:

(1) if the upper owner is reasonable and the lower owner unreasonable, the upper owner wins; (2) if the upper owner is unreasonable and the lower owner reasonable, the lower owner wins; and (3) if both the upper and lower owner are reasonable, the lower owner wins also.12

Even the location of the tracts and their relationship to municipal boundary lines may affect the ways in which these principles are applied. In Holden v. Edwards Specialties13, the Alabama court applied the modified civil law rule after specifying that the dominant estate was located within the municipal boundary, and the servient estate was outside the municipality.

An additional problem occurs when attempting to determine the type of water flow under consideration. Mogle v. Moore14 breaks down the passage of water into three categories: surface waters, streams and floodwaters:

Surface waters are defined as waters falling upon and naturally spreading over lands.  They may come from seasonal rains, melting snows, swamps or springs,moss or from all of them … A stream is a watercourse having a source and terminus, banks and channel, through which waters flow, at least periodically.  Streams usually empty into other streams, lakes, or the ocean, but a stream does not lose its character as a watercourse even though it may break up and disappear … Flood waters are distinguished from surface waters by the fact that the former have broken away from a stream, while the latter have not yet become part of a watercourse.15

These definitions were a necessity given the confusing situation confronting the court. Surface flow water was concentrated into a creek bed, and then left the creek to become floodwaters on Moore’s land. In response to this problem, Moore dug a ditch and constructed a barricade that diverted the water onto the Mogle’s lands. Surprisingly, the barricade Moore constructed was made of wooden posts connected with interwoven barbed wire. Apparently branches and other debris became entangled in this fence and served to divert later overflows.

This situation was all the more tangled because the original flow of water had been artificially modified at several points along its course. Not only was the creek completely dry for part of the year due to the dams constructed upstream, but the drainage at issue was overflow water that was diverted from the natural stream bed into an undeveloped street.

In this instance, the court held that the overflow constituted “flood water” since it had previously drained through a recognizable creek bed with defined banks and channel. As a result, the Moore family was justified in diverting the water away from their land. However, the dissenting opinion recorded with this ruling and subsequent California rulings emphasize the difficulties faced by the courts in these situations. This ruling emphasizes the vital role that surveyors might have in a similar situation since the origins and characteristics of the flow of water must be determined over a large area.

An Ohio ruling summarizes the difficulties faced by the courts when dealing with damages caused by water diversion or concentration.

As is apparent from the foregoing, the present state of the law in Ohio regarding surface water rights is decidedly un-clear.  In this respect we are not alone.  Courts in other states have also experienced difficulty in applying these inflexible doctrines to varying circumstances. The result has been a trend toward adoption of a reasonable-use approach based on tort liability rather than property rights.  Forty years ago, a landmark article on this subject succinctly posed the dilemma and proposed the following solution:

‘The question presented in such cases is not so much one of law as of fact.  It would doubtless be convenient if it could always be answered by citing a stereotyped definition of legal right.  But as the situation of all adjoining owners of land is not the same, and as the circumstances attending the use of land in view of the flow of surface water are infinitely various, the failure to attain substantial justice by the enforcement in all cases of a rule of law which does not recognize these important differences is not surprising.  The result is that the question of the reasonableness of the use in a given case must be determined as a question of fact under all the attendant circumstances.’”16

This opinion also provides an opportunity for the surveyor to enter the picture in litigation of this type. It is clear that a detailed analysis of the physical features on the surrounding properties may be required before the courts can come to a proper conclusion.

Indiana state statutes provide a vivid example of how statutory requirements may play a major role in the control of surface water. “Legal drains” are the subject of major portions of Title 36 Article 9, Chapter 27, along with mutual drains, private drains, regulated drains, rural drains and tiled drains. In addition, 36-9-27-33 specifies a right-of-entry for county surveyors on a strip of land lying within 75 feet of any regulated drain. By necessity, this is only a cursory view of Chapter 27, as it includes more than 100 individual subsections.

It’s easy to see the significance of these statutory requirements because they are reflected in litigation across the state. Attempts to determine legislative intent of the various regulations are common in Indiana, as are suits involving tax assessments or perceived damages associated with legal drains. Rulings have also dealt with the legitimacy of a natural watercourse as a legal drain.

 While all of this information may be a bit “draining” on the reader, it serves to emphasize the complexity of issues that may surround that innocent-looking drainage ditch or culvert shown on your survey. With increased public scrutiny of many aspects of water use and control, the surveyor cannot afford to drift through this sea of confusion.  



1.         Lucas v. Rawl Family Ltd.: 359 S.C. 505; 598 S.E.2d 712 (2004)

2.         Gannon v. Hargadon: 92 Mass. 106 (1865)

3.         Town of Union v. Durkes: 38 N.J.L. 21 (1875)

4.         Keller v. Town of Southbury: UWYCV086000950S (2010)

5.         Harris v. The Woodlands Club: 2012 ME 117; 55 A.3d 449 (2012)

6.         Ogburn v. Connor: 46 Cal. 346 (1873)

7.         Greiner v. Wemer: No. 5-015 / 04-0380; Iowa App.

8.         Westland Skating Center v. Machado Buick: 542 So. 2d 959 (1989)

9.         Kueffer v. Brown: 879 S.W.2d 658 (1994)

10.       Kueffer v. Brown: 879 S.W.2d 658 (1994)

11.       66 Mo. L. Rev. 469 Blake J. Pryor (Spring, 2001)

12.       Skoumbas v. City of Orinda: 165 Cal. App. 4th 783; 81 Cal. Rptr. 3d 242; 2008

13.       Holden v. Edwards Specialties: 62 So. 3d 1029; 2009

14.       Mogle v. Moore: 16 Cal. 2d 1; 104 P.2d 785 (1940)

15.       Mogle v. Moore: 16 Cal. 2d 1; 104 P.2d 785 (1940)

16.       McGlashan v. Spade Rockledge Terrace: 62 Ohio St. 2d 55; 402 N.E.2d 1196 (1980)


Neither the author nor POB intend this column to be a source of legal advice for surveyors or their clients. The law can change over time and differs in important respects for different jurisdictions. If you have a specific legal problem, the best source of advice is an attorney admitted to the bar in your jurisdiction.

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