dissenting. I believe that the t: ..trial court was clearly erroneous in finding that the drainage across appellant’s land was a natural watercourse, and therefore I would reverse. A natural watercourse is defined as:
[A] running stream of water; a natural stream, including rivers, creeks, runs and rivulets. There must be a stream, usually flowing in a particular direction, though it need not flow continuously. It may sometimes be dry. It must flow in a definite channel, having a bed and banks, and usually discharges itself into some other stream or body of water. It must be something more than mere drainage over the entire face of the tract of land occasioned by unusual freshets or other extra ordinary causes.
Boyd v. Greene County, 7 Ark. App. 110, 644 S.W.2d 615 (1983) (quoting Boone v. Wilson, 25 Ark. 364, 188 S.W. 1160 (1916)).
The trial court listed the following reasons for finding the drainage a natural watercourse:
a. The watershed which produces the drainage is large in area. The exact dimensions are not in evidence, but the area includes a number of streets and houses to the north and northwest, businesses to the west along the north side of Highway 82B and undeveloped land to the north owned by Bilo’s company.
b. Beavers used to inhabit the area.
c. The property of E.D. Broadcasting constitutes minuscule amount of the watershed area. Likewise only a minuscule amount of the water draining across Bilo’s land came from the land of E.D. Broadcasting. Conversely, the vast majority of the water comes from the property of other owners, including Bilo’s company.
d. Bilo’s land has long been a drainage area while E.D. Broadcasting’s land has been used for radio stations for about thirty years.
e. The land of Bilo was identified as wetlands by the U.S. Corp. of Engineers and a permit for the fill was required.
None of these factors fit the definition of a watercourse and in fact confirm that this is surface water. The court describes no definite channel with bed and banks. In fact it seems to state that water runs from the homes and business to the north and northwest, from the business to the west and from the contiguous land to the north. Apparently this watercourse runs both to the south and the east and contains streets and houses, but no actual banks or bed.
The fact that beavers once inhabited the area is of no import. There is no evidence in this record that beavers will only inhabit a natural watercourse as defined by Arkansas case law.
That E.D. Broadcasting constitutes a minuscule amount of the watershed only reinforces that the water is flowing from several directions and is not a part of a defined channel. Further, that appellant’s land has long been a drainage area proves that this may be a collection area for surface water but not a natural watercourse that must usually discharge itself into some other stream or body of water, as required by our definition of a natural watercourse. Finally, the Army Corps, of Engineers map that was introduced along with its letter of June 13, 2005, does not show any unnamed tributary ofBayou de Loutre, and does not show where the parties’ properties are located.
This land is a developed urban area in El Dorado, with a car lot, residential area, and other businesses located at or near this intersection. The pictures that were introduced clearly show that if there had ever been a “tributary” or “creek,” it has been obliterated by the development of the area. This is now an urban intersection with roads and man-made culverts. I simply believe the trial court’s finding that this drainage is a natural watercourse is not supported by the evidence and is clearly erroneous.
Because I would find the drainage to be surface water, I believe that Levy v. Nash, 87 Ark. 41, 112 S.W. 173 (1908), controls. In Levy the Arkansas Supreme Court stated:
The lot of the defendant is in the midst of a populous city. The rule which governs the right to dispose of surface water in agricultural districts does not apply to -such property. It is set apart, held and owned for building purposes. To make it useful for this purpose the owner has the right to fill it up, elevate it, to ditch it, to construct building on it in such a manner as to protect it against the surface water of an adjoining lot. If in so doing he presents the flow of surface water upon his lot, the owner of the higher lot has no cause of action against him. This is necessary incident to the ownership of such property. A contrary rule would operate against the advancement and progress of cities and towns and to their injury, and would be against public policy.
87 Ark. at 44, 112 S.W. at 174.
Under the rule set out in Levy, “The owner has the right to fill it up, elevate it, to ditch it, to construct buildings on it in such a manner as to protect it against the surface water of an adjoining lot.” 87 Ark. at 44, 112 S.W. at 174. Here the appellant filled it up as provided in Levy. Therefore appellant could divert the water as he did.
As I believe that a natural watercourse as defined by our cases does not flow through this paved intersection in El Dorado, I would reverse.
Griffen, J., joins.