Werner v. Popp

¶1A reargument having been granted, the following opinion was filed.

¶2Upon the reargument in this case it was conceded that the facts stated in the opinion2 were substantially accurate. This was undoubtedly the case, although more prominence might have been given to the claim practically admitted that in the improvement of his land defendant’s ditch followed the natural course of drainage.

¶3Counsel for plaintiff has urged with much ability that it is our duty to overrule previous cases in this court under which it had been held that the upper proprietor, subject to the limitations therein stated, may transfer surface water by artificial means to a lower proprietor, thus imposing upon the latter the burden of getting rid of the same in a similar manner until the waters thus turned upon him reached their natural outlet and are thence disposed of. After considering fully the arguments and reasons that have been urged for the reversal of the doctrine already adopted in this state a majority of the court are not disposed to unsettle the rule of law already established and therefore adhere to the decision as originally filed.

¶4Order affirmed.