jury is caused by water accumulated in a square left below grade in making a public improvement. Where a canal boat moored to a city wharf alongside and beneath the opening of a large main sewer was sunk during a heavy shower by the water issuing from the sewer, the city was held not liable. A county, being an arm or branch of the State government, is not, in the absence of statute, liable for the neglect or wrongful acts of its officers, such as the flooding of land in the erection of a county jail. 1 Herring v. District of Columbia, 3 Mackey, 572. Downing v. Mason County, 87 Ky. 208. But, as to pollution by alms 2 Behan v. New York, 24 Fed. Rep. house sewage, see Lefrois v. Monroe 239. County, 162 N. Y. 563. SECTION. 263, 264. CHAPTER IX. SURFACE AND SUBTERRANEAN WATERS - MINES. Surface water defined. 265. The common-law rule as to such water. 266. The rule of the civil law. 267. Rights in surface water not analogous to rights in watercourses. 268. Exclusion of surface water. 269. Municipal corporations-Surface water in streets. 270. Ibid.-Duty as to sewers and gutters. 271. Surface water collected and discharged through artificial channels. 272, 273. Ibid.- Municipal and railroad corporations. 274. Land-owner may drain into a watercourse by artificial channels. 275. He máy, at common law, shut out surface water by embanking. 276. But he cannot do this under the civil law. 277. Exclusion of surface water flowing in highways. 278. Discharge of polluted surface water. 279. Prescriptive rights. 280. Percolating waters. 281. Underground waters having a defined channel and course. 282. Acton v. Blundell. 283, 284. Later English decisions. 285. Wheatley v. Baugh. 286. Effect of private agreements on the rights of the parties thereto. 289. Sinking of land caused by withdrawing subterranean waters. Malicious motive as a cause of action. 291. Property in petroleum oil beneath the surface. 292, 293. 294. Eaves-drip. Mines-Flow of subterranean waters. 295. Increasing the flow of such waters artificially is actionable. 297, 298. Proximate and remote cause. § 263. Surface water-Defined.- Water spread over the surface of land, or gathering into natural depressions, or into 1 Jeffers v. Jeffers, 107 N. Y. 650; Bloodgood v. Ayers, 108 N. Y. 400; 37 Hun, 356; 2 Am. St. Rep. 443, note; Kelly v. Dunning, 39 N. J. Eq. 482; West v. Taylor, 16 Oregon, 165; Pyle v. Richards, 17 Neb. 180; Jones v. Wabash Ry. Co., 18 Mo. App. 251; Kansas v. Swope, 79 Mo. 446; Parke County swamps, or bayous, or percolating the soil beneath the surface, if flowing in no definite channel, does not constitute a watercourse, and is not subject to the principles of law regulating the rights of riparian owners.2 Surface water may be said to form a watercourse at the point where it begins to form a reasonably well-defined channel with bed, banks or sides, and current, although the stream itself may be very small, and the water may not flow continuously; and surface water ceases to be such after entering within the banks of a watercourse, or forming a lake. Mere surface drainage through a ditch extending across different tracts of land does not form a watercourse. By the common law no rights can be claimed jure naturæ in the flow of surface water, and its detention, expulsion, or diversion is not an actionable injury, even when 5 1 Warmack v. Brownlee, 84 Ga. 196; St. Louis Ry. Co. v. Schneider, 30 Mo. App. 620; Cleveland, etc. Ry. Co. v. Huddleston, 21 Ind. App. 620. See supra, §213. Sewage flowing through a populous city is not a natural watercourse. Murphy v. Wilmington, 5 Del. Ch. 281. 2 Supra, § 41; Swett v. Cutts, 50 N. H. 439; Morrison v. Railroad Co., 67 Maine, 353; Stanchfield v. Newton, 142 Mass. 110, 116; Wagner v. Long Island R. Co., 5 Thomp. & C. (N. Y.) 163; 2 Hun, 633; 70 N. Y. 614; Earl v. De Hart, 12 N. J. Eq. 280; 72 Am. Dec. 395, note; Shields v. Arndt, 3 Green Ch. 234; Carlisle v. Cooper, 21 N. J. Eq. 576, 581; 19 id. 256; Curtis v. Ayrault, 47 N. Y. 73; Livingston v. McDonald, 21 Iowa, 160; Boynton v. Gilman, 53 Vt. 17; Thunder Bay B. Co. v. Speechley, 31 Mich. 336; Chicago, etc. Ry. Co. v. Henneberry, 153 Ill. 354; 28 Ill. App. 110; Wadsworth v. Smith, 11 Maine, 278; Gibbs v. Williams, 25 Kan. 214; Palmer v. Waddell, 22 Kan. 352; Schlichler v. Phillipy, 67 Ind. 201; Hoyt v. Hudson, 27 Wis. 656; Fryer v. Warne, 29 Wis. 511; Eulrich v. Richter, 37 Wis. 226; 41 Wis. 318; Luther v. Winnisimmet Co., 9 Cush. 171; Barnes v. Sabron, 10 Nev. 217; ante, § 41; McKinley v. Union Co., 42 Wis. 203; 47 Wis. 324; Green v. Carotto, 72 Cal. 267; Ferris v. Wellborn, 64 Miss. 29; Benson v. Chicago R. Co., 78 Mo. 504; Hahn v. Miller, 68 Iowa, 745; Cairo, etc. R. Co. v. Brevoort, 62 Fed. Rep. 129; 23 Am. L. Rev. 372. 3 Hebron Gravel Road Co. v. Harvey, 90 Ind. 192; Arthur v. Grand Trunk Ry. Co., 22 Ont. App. 89. 4 Hawley v. Sheldon, 64 Vt. 491; Churchill v. Lauer, 84 Cal. 233; Simmons v. Winters, 21 Oregon, 35; Mor. rissey v. C., B. & Q. R. Co., 38 Neb. 406; Wolf v. Crothers, 21 Penn. Co. Ct. 627. 5 Ibid.; Jones v. Hannovan, 55 Mo. 462; Lux v. Haggin, 69 Cal. 255. 6 Schaefer v. Marthaler, 34 Minn. 487. 7 Stanchfield v. Newton, 142 Mass. 110; Dissette v. Lowrie, 6 Ohio N. P. 392. injury results to others. If the gist of a cause of action is the diversion of the water of a brook or watercourse, this is an essential and material averment which the plaintiff must prove in order to maintain his action; and it is a variance to show that the defendant's act drained mere surface water, or water from a swamp, without any proof to sustain the allegation of a diversion of water from a brook. But if a well-defined, natural stream empties into a swamp or lake, where all definite channel is lost, and emerges again into a well-defined channel below, it is a question of fact dependent upon the extent of the swamp or lake, whether it is the same stream; and if it is, the owners of land upon the lower stream have riparian rights, and an owner of land upon the stream above the swamp or lake is not entitled to divert water therefrom to their injury.2 § 264. Same.-A stream does not cease to be a watercourse and become mere surface water because at a certain point it spreads over a level meadow several rods in width, and flows for a distance without defined banks before flowing again in a definite channel. In broken regions of country, intersected by long, deep ravines, or surrounded by high, steep hills or bluffs, down which large quantities of water from rain or melting snow rush rapidly, often attaining the volume of a small river, and usually following a well-defined channel, the common-law rules applicable to ordinary surface water do not necessarily apply. In many respects such waters partake more of the nature of natural streams than of ordinary surface water, and, to a certain extent, are governed by the same 1 Griffith v. Jenkins, 2 Allen, 589; Munkers v. Kansas City R. Co., 60 Mo. 334. 2 Mansford v. Ross, 4 N. Z. L. R. (S. Ct.) 290; 5 id. (Ct. of App.) 33; Byrne v. Minneapolis Ry. Co., 38 Minn. 212; Case v. Hoffman, 84 Wis. 438; 72 N. W. Rep. 390; Ne-Pee-Nauk Club v. Wilson, 96 Wis. 290; Yazoo, etc. R. Co. v. Davis, 73 Miss. 678; Warmack v. Brownlee, 84 Ga. 196; St. Louis Ry. Co. v. Schneider, 30 Mo. App. 620. 3 Ante, § 41; Macomber v. Godfrey, 108 Mass. 219; Gillett v. Johnson, 30 Conn. 180; Briscoe v. Drought, 11 Ir. C. L. 250; Hinkle v. Avery, 88 Iowa, 47; Naegely v. Saginaw, 100 Mich. 532; Rigney v. Tacoma L. & W. Co., 9 Wash. 576; Munkres v. Kansas City R. Co., 72 Mo. 514; Hebron Gravel Road Co. v. Harvey, 90 Ind. 192; Robinson v. Shanks, 118 Ind. 125; Lambert v. Alcorn, 144 Ill. 313; New York, etc. R. Co. v. Speelman, 12 Ind. App. 372; Alcorn v. Sadler, 66 Miss. 221. rules; and no one has a right to obstruct or divert such waters so as to cast them upon the property of others to their injury. But in general, in order to constitute a watercourse, the channel and banks formed by the flowing of the water must present to the eye, on a casual glance, the unmistakable evidences of the frequent action of running water. The water from a flowing stream, when spread over the adjoining land by a freshet, has been treated as surface water.3 265. Same-The common-law rule.- According to the rule of the common law, which is accepted in England, Massachusetts, Maine, Vermont, New York, New Hampshire, Rhode Island, New Jersey, Michigan, Minnesota, Wisconsin, Washington, New Mexico, Texas, etc., a land-owner may appropriate to his own use or expel from his land all mere surface water or superficially percolating waters, in draining his soil for agriculture, in collecting it for domestic purposes, or for the sole purpose of depriving an adjoining owner of it, and any person, from whose land it is withheld or whose water supply is depleted, will, in the absence of an express grant,' have no right of action for such diversion or obstruction.8 Surface water is regarded as a common enemy which every proprietor may fight 1 Grand Junction Canal Co. v. Shugar, L. R. 6 Ch. 483; Bowlsley v. Speer, 31 N. J. L. 351; Kelly v. Dunning, 39 N. J. Eq. 482; McClure v. Red Wing, 28 Minn. 186; Ramsdale v. Foote, 55 Wis. 557, 561; Town v. Mo. Pac. Ry. Co., 50 Neb. 768; post, § 271. 2 Palmer v. Waddell, 22 Kan. 352; Gibbs v. Williams, 25 id. 214; Union Pacific Ry. Co. v. Dyche, 31 id. 120; Chicago R. Co. v. Morrow, 42 id. 339; Town v. Mo. Pac. Ry. Co., 50 Neb. 768; Drewett v. Sheard, 7 C. & P. 465; Dudden v. Clutton Union, 1 H. & N. 627; Rex v. Trafford, 8 Bing. 204: Staffordshire Canal v. Birmingham Canal, L. R. 1 H. L. 254, 272; Rochdale Canal v. Radcliffe, 18 Q. B. 287; Reynolds v. McArthur, 2 Peters, 417, 438; Bangor v. Lansil, 51 Maine, 521: Arnold v. Foot, 12 Wend. 330; Earle v. De Hart, 12 N. J. Eq. 283; Kauffman v. Griese mer, 26 Penn. St. 407; Lessard v. Stram, 62 Wis. 112. 3 Cass v. Dicks, 14 Wash. 75. See Gilfillan v. Schmidt, 64 Minn. 29; Campbell v. Nicolini (Tex. Civ. App.), 35 S. W. Rep. 74; infra, § 275. 4 Greatrex v. Hayward, 8 Exch. 291; Wood v. Waud, 3 id. 748; Broadbent v. Ramsbotham, 11 id. 602; Buffum v. Harris, 5 R. I. 243; Walker v. New Mexico & S. P. Ry. Co., 165 U. S. 593; Sweet v. Conley, 20 R. I. 381; Benthall v. Seifert, 77 Ind. 302; Cairo R. Co. v. Houry, id. 364; Wilson v. Duncan, 74 Iowa, 491; Gembler v. Echterhoff (Tex. Civ. App.), 57 S. W. Rep. 313; Davison v. Hutchinson, 44 N. J. Eq. 474. 5 Rawstron v. Taylor, 11 Exch. 369. 6 Chatfield v. Wilson, 28 Vt. 49. 7 Rawstron v. Taylor, 11 Exch. 369. 8 Barkley v. Wilcox, 86 N. Y. 140; 19 Hun, 320; Buffum v. Harris, 5 R. L |