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CITY ATTORNEY — CIVIL DEPARTMENT <br /> Bert Teitzel <br /> July 1, 1986 <br /> Page 2 <br /> that such action upon the part of a municipa- <br /> lity amounts to a direct trespass. The gist <br /> a __ 1 of the injury complaind of in the present case <br /> is the casting of an increase volume of water <br /> into the water course crossing plaintiffs' <br /> premises without there being an adequate <br /> outlet therefor. . . . For damages directly <br /> resulting from such active wrongdoing, the <br /> city is without immunity. <br /> "Defendant City contends, however, that it may <br /> without liability drain surface water from <br /> land, by means of artificial ditches or tiles, <br /> into a stream or onto lands where it would <br /> naturally flow, even though such natural <br /> flowage is thereby accelerated. As an <br /> abstract statement, this is true, but in so <br /> doing the municipality must act with reason - <br /> able consideration for the rights of the <br /> lower proprietor. If its acts cause an un- <br /> usual or unreasonable amount of water to be <br /> emptied upon the lower land, it is liable in <br /> damages to the owner thereof." 191 Or at <br /> 190 -191. <br /> Although the general rule in property law is that an <br /> upstream land owner may collect and shed off his property surface <br /> waters even if that results in flooding of a downstream property <br /> owner, and that there will be no liability for diverting surface <br /> waters into a natural water course, the Court in the Levene case <br /> indicates that where a municipality acts to construct and main- <br /> tain a drainage system, it may take on the responsibility of <br /> ensuring that the it onto private <br /> property, at least beyond <br /> What that means in this situation is that the City, by <br /> improving the West Amazon Channel and by diverting surface waters <br /> into, may have assumed a responsibility that includes being care- <br /> ful that the waters it has diverted into Tthe C hann e l not there <br /> and don't escape onto private property. <br /> insurer and is not obligated to prevent flooding but may be at <br /> t ial if it unreasonably too the extentbthat historical p <br /> carrying capacity <br /> tial.• In short, t <br />