DRAIXAGE DISTRICT ASSESSMENTS. 15 
due regard for the rights of others. He would be answerable for 
damages if in an ordinary flood his works should change the course 
of the stream or cause the water to rise on or over other land. 
There are two contradictory rules in operation in different States in 
regard to surface waters. One is the civil-law rule and the other 
the common-enemy rule. 
The civil-law rule is that as between the owners of higher and 
lower ground the upper proprietor has an easement to have surface 
water flow naturally from his land onto the land of the lower pro- 
prietor, which is subject to a corresponding servitude, and hence the 
lower proprietor has not the right to obstru;r its flow and cast the 
water back upon the land above. The courts in the States which 
follow this rule have held that the upper proprietor has the right 
to collect surface water in ditches or underground drains discharg- 
ing into natural depressions, thus accelerating the flow and increasing 
the volume of the water emptying upon the land of the lower pro- 
prietor so long as the water is not diverted from its natural direction 
of flow. 
The relevancy of this rule to drainage assessments lies in the fact 
that it defines one natural advantage appurtenant to land. Under 
this rule high land can not be assessed for the drainage of lower 
land made necessary by reason of the waters coming from the high 
land. 
In the States following this rule many decisions have been made 
similar to the following in Commissioner's of Sangamon and Drum- 
mer Drainage District v. Houston, 111., June, 1918, 120 N. E. 253 
(quoting the syllabus) : 
The mere fact that the flow of water in a natural watercourse into which 
tile drains empty has been accelerated is not sufficient proof of benefits to the 
lands drained by the tile to warrant the annexation of such lands to a drain- 
age district, but it must further appear that the lands, when adapted only for 
agricultural purposes, have been thereby rendered more productive and conse- 
quently more valuable. The owners of dominant lands which in the course of 
nature cast waters upon the servient lands can not be compelled to contribute 
to the expense of a drainage district for the draining of waters thrown on the 
servient lands. 
The civil-law rule is followed by the States of Alabama, Cali- 
fornia, Georgia, Illinois, Iowa, Kentucky. Louisiana, Maryland, 
Michigan, North Carolina, Ohio, Pennsylvania, and Texas. 
The common-enemy rule, or, as it is sometimes called, the common- 
law rule, is to the effect that surface water is a common enemy, that 
a landowner may lawfully protect his land from water flowing from 
a higher estate upon it, and therefore the higher proprietor has no 
easement enabling him to drain his surface water upon lower land. 
This rule was laid down in some early Massachusetts decisions, such 
as Luther v. Winnismet County, 9 Mass. 171, in which it was held 
that one landowner can not claim a right of drainage or flow of water 
from his land to and through the land of another It was held in 
Rathke v. Gardner, 131 Mass. 15, that a property owner has no right 
to collect surface water into an artificial channel and cast it upon the 
land of an adjoining proprietor unless an easement has been secured. 
The rule, however, has been so modified by the courts which follow 
it that drainage upon other lower land is lawful provided no serious 
injury is done. The Minnesota Supreme Court in Sheehan r. Flynn. 
