Duhaime's Law Dictionary


Surface Waters Definition:

Waters falling on the land by precipitation or rising from springs.

Related Terms: Flood Waters

In Dean v Sudbury, Justice Henderson of the Ontario Court of Appeal wrote:

"The owner of lands is entitled to alter the surface and grades of his lands, and to level and otherwise improve them, without incurring any liability for the surface water which in the course of nature falls upon the lands, and in the course of nature drains from them."

In Mogle v Moore, the Supreme Court of California adopted and approved these words from local doctrine:

"Surface waters are defined as waters falling upon and naturally spreading over lands. They may come from seasonal rains, melting snows, swamps or springs, or from all of them. Surface waters consist of surface drainage falling on or flowing from and over a tract or tracts of land before such waters have found their way into a natural watercourse. Streams are usually formed by surface waters gathering together in one channel and flowing therein. The waters then lose their character as surface waters and become stream waters...

"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.... It is also thoroughly settled that flood waters escaping from a stream are not surface waters and do not lose their character as flood waters while flowing wild over the country.

[rain puddle]"[O]ne has no right to obstruct the flow on to his land of what are technically known as surface waters. But by surface waters are not meant any waters which may be on or moving across the surface of the land without being collected into a natural watercourse. They are confined to waters falling on the land by precipitation or rising thereon in springs. Putting it conversely, they do not include waters flowing out of a natural watercourse, but which yet were once a part of a stream and have escaped from it - flood waters...."

In Oklahoma Water, Justice McInerney of the Supreme Court of Oklahoma opined:

"Surface waters are those which, in their natural state, occur on the surface of the earth in places other than definite streams or lakes or ponds. They may originate from any source and may be flowing vagrantly over broad lateral areas or, occasionally for brief periods, in natural depressions. The essential characteristics of such waters are that their short-lived flows are diffused over the ground and are not concentrated or confined in channel flows of definite streams, nor are they concentrated or confined in bodies of water conforming to the definition of lakes or ponds.

"The term surface water, traditionally employed by the common law, is somewhat misleading. This is so because all waters appearing on the surface of the earth, be they found in definite streams or elsewhere, are technically surface waters. In more recent times courts and scholars alike have preferred diffused surface water as a more accurate and descriptive expression."

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