Klutey v. Commonwealth, Department of Highways

DISSENTING OPINION

OSBORNE, Judge.

It appears that the holding of the trial court which is affirmed by the majority opinion herein is to the effect that the dominant tenement is free to release surface water upon the servient tenement in any quantity or with any force that it chooses so long as an additional source of water is not tapped. The same applies to the acceleration of flow. In affirming this revolutionary principle the majority opinion turns to the courts of Minnesota for authority. Enderson v. Kelehan, 226 Minn. 163, 32 N.W.2d 286.

The respective rights of property holders as they…