that the company had acquired a vested right thereto, which was not forfeited by its failure to maintain sufficient ditches.1

§ 257. Same. A railroad company is liable in damages if an excavation made for its road drains a well or spring on land excavated to but not crossed by its line; 2 if the road injuriously affects a right of flowage,3 a water power actually used, or a landing, or causes a deposit of sand or refuse, or injury to crops;7 if it is constructed through a mill-pond which the legislature has authorized to be raised in a navigable river, although the conditions of the statute giving such authority have not been complied with; or if it removes a natural barrier which is not. on the land taken, but which protects it from floods in a neighboring river, even after the land-owner has released all damages on account of the construction of the road through his land. If a canal company, under the power granted to take

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1 Texas Ry. Co. v. Sutor, 56 Texas, 496; 59 id. 29.

2 Parker v. Boston & Maine Railroad, 3 Cush. 107; Aldrich v. Cheshire R. Co., 21 N. H. 359; Peoria Railroad v. Bryant, 57 Ill. 473. As to the right of a railway company to appropriate a spring of water, which is private property, to supply a tank, see Strohecker v. Alabama R. Co., 42 Ga. 509; Hussner v. Brooklyn City R. Co., 30 Hun, 409; Winklemans v. Des Moines N. W. Ry., 62 Iowa, 11. As to springs taken by a water company to supply its reservoir and consequent injury to the land not taken, see Finn v. Providence Gas Co., 99 Penn. St. 631.

3 Davidson v. Boston & Maine Railroad, 3 Cush. 91; Hot Spring Ry. Co. v. Tyler, 36 Ark. 205.

4 Colorado M. Ry. Co. v. Brown, 15 Col. 193; Clark v. Penn. R. Co., 145 Penn. St. 438.

7 Chicago R. Co. v. Carey, 90 Ill. 514; Houston R. Co. v. Knapp, 51 Texas, 592; Sabine Ry. Co. v. Wood, 69 Texas, 679; Gulf Ry. Co. v. Mc Gowan, 73 Texas, 355; Gulf Ry. Co. v. Preston, 74 Texas, 181; Emry v. Raleigh R. Co., 102 N. C. 209; Omaha Ry. Co. v. Standen, 22 Neb. 343.

8 White v. South Shore R. Co.. 6 Cush. 412. In Pennsylvania the right given by the act of March 23, 1803, to construct a mill-dam in a navigable stream, is a revocable license, and the mill-owner cannot recover for a subsequent interference with this right by the construction of a railroad under legislative authority. Susquehanna Canal Co. v. Wright, 9 W. & S. 9; Monongahela Nav. Co. v. Coons, 6 W. & S. 101; Bigler v. Antes, 21 Penn. St. 288; New York R. Co. v. Young, 33 id. 175; West Branch Canal Co. v. Mulliner, 68 id. 357.

9 Eaton v. B. C. & M. R. Co., 51 N. H.

5 Railroad Co. v. Schurmeir, 7 Wall. 504; Delaware Canal Co. v. Lee, 22 272; ante, § 255.

6 Trinity Ry. Co. v. Schofield, 72 Texas, 496; Wright v. Syracuse R. Co., 49 Hun, 445; Wabash R. Co. v. Sanders, 47 Ill. App. 436.

N. J. 243. Contra, Alexander v. Milwaukee, 16 Wis. 247, which appears to be now overruled. See Arimond v. Green Bay Co., 31 Wis. 316; Pumpelly v. Green Bay Co., 13 Wall. 166.

land by paying the value thereof, pays for a definite quantity to be overflowed by a dam and works to be erected by them, and the works when erected cause more land to be overflowed than was paid for, the land-owner may maintain an action therefor, even though he fails to prove satisfactorily any raising of the dam.' And if such a company enters upon land before acquiring title thereto, either under their charter or by the assent of the land-owner, and erects dams and works necessary for its own purposes, and the land, with the works so constructed, is afterwards conveyed by the owner to the company, the latter is not thereby exempted from liability to an action for damages to other land of the same owner from the want of proper care and skill in the construction or repair of the works. A railroad corporation which is authorized to construct its road across the pond of a mill corporation, formed by damming a natural stream, is bound to so construct the road as to permit the passage of the waters both of the stream and the pond; and a joint action of tort for the entire injury may be maintained against both corporations, if the negligence of both combined to produce the injury.3 A person who purchases land adjacent to a railroad after its construction can recover for damages to his crop from the overflow of streams for the passage of which no sufficient drains or culverts are provided.4

$258. Same-Negligence.-A railroad company, or other corporation acting in pursuance of legislative authority, is only required to exercise reasonable diligence and precaution in constructing passage-ways for the water through its bridges and embankments, and is entitled to select a safe and mass

1 Morris Canal Co. v. Seward, 23 N. J. 219; Den v. Morris Canal Co., 24 N. J. 588; Plum v. Same, 2 Stock. 257.

2 Morris Canal Co. v. Ryerson, 27 N. J. L. 457; 28 id. 97; Trenton Water Power v. Raff, 36 id. 335; Lehigh Valley Railroad v. McFarlan, 43 id. 615; Valentine v. Central R. Co., 29 id. 60, 561; St. Louis Ry. Co. v. Walbrink, 47 Ark. 330.

3 Bryant v. Bigelow Carpet Co., 131 Mass. 491; Illinois Ry. Co. v. Switzer, 117 Ill. 399.

4 Atlantic & D. R. Co. v. Peake, 87 Va. 130.

5 Bellinger v. New York Central R. Co., 23 N. Y. 42. In Michigan, a statute which requires a railroad corporation to build and maintain a culvert when a drain is run across its roadbed is held to be an unconstitutional burden, under the constitution of that State. Chicago & Grand Trunk Ry. Co. v. Chappell (Mich.), 82 N. W. Rep. 800. See Chicago, B. & Q. R. Co. v. Chicago, 166 U. S. 226.

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ive structure in preference to a lighter one which would less obstruct the water. It is not liable to an action for damages if it fails to construct a culvert or bridge so as to pass extraordinary floods; if without negligence an accumulation of water is set free by the breaking of a culvert in an embankment and the land below is flooded; if it has taken reasonable precautions in constructing a bridge across a stream to prevent unnecessary damage to the adjacent lands by flooding those which are above, or washing away the banks of those below; 5 if the road is constructed without a culvert across a cranberry marsh, one side of which afterwards becomes dry; if, in a case of strict necessity, it closes a watercourse and floods other portions of the land than the part which it has taken; if it causes lands to be flowed by the necessary and proper elevation of its road-bed on its own land and not in the channel of the stream; " nor is it liable for interest on the damages annually sustained by the plaintiff.9

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1 McCleneghan v. Omaha R. Co., 25 Strouss v. Wabash Ry. Co., 17 Fed. Neb. 523. Rep. 209. So of the passage-ways in a bridge, drain, or gutter maintained by a city. Sprague v. Worcester, 13 Gray, 193; Allen v. Chippewa Falls, 52 Wis. 430; Illinois Central R. Co. v. Bethel, 11 Brad. (Ill.) 17; Hopkins v. Rush River, 70 Wis. 10.

2 Pittsburgh Railway v. Gilleland, 56 Penn. St. 445; Baltimore R. Co. v. Sulphur Spring School District, 96 Penn. St. 65; s. c. 3 Penny. (Pa.) 518; Sullens v. Railroad Co., 74 Iowa, 659; Moore v. Railway Co., 75 Iowa, 263; Noe v. Chicago Ry. Co., 76 Iowa, 360; Chicago R. Co. v. Schaffer, 26 Ill. App. 280; Central R. Co. v. Kent, 84 Ga. 351; Gulf Ry. Co. v. Holliday, 65 Texas, 512; Sabine Ry. Co. v. Hadnot, 67 Texas, 503; Gulf Ry. Co. v. Pomeroy, id. 498; Bellinger v. New York Central R. Co., 23 N. Y. 42; Houston R. Co. v. Parker, 50 Texas, 330. It is liable to its servants for personal injuries caused by the improper condition and washing out of a culvert. Davis v. Central Vermont R. Co., 55 Vt. 84. So, as to personal injuries caused by a defect in the road which results from ditches and drains, along its sides, being insufficient to protect it from unprecedented floods. Ellet v. St. Louis Ry. Co., 76 Mo. 518; Ely 2. Same, 77 Mo. 34. Loss of a passenger's baggage by a sudden and extraordinary flood is an act of God.

3 Mills v. Greenville R. Co., 13 S. C. 97. See § 161, ante; Indiana Ry. Co. v. Adamson, 114 Ind. 282; Kankakee R. Co. v. Horan, 22 Ill. App. 145; 23 id. 259; 30 id. 552; 23 N. E. Rep. 621; Ohio Ry. Co. v. Wachter, id. 415.

4 Mellen v. Western Railroad, 4 Gray, 301. See Fordyce v. Russell, 59 Ark. 312.

5 Ante, § 248a.

Lyon v. Green Bay Ry. Co., 42 Wis. 538; Old Colony R. Co. v. Miller, 125 Mass. 1.

7 Johnson v. Atlantic R. Co., 35 N. H. 569; Mason v. Kennebec Railroad, 31 Maine, 217.

8 Moyer v. New York Central R. Co., 88 N. Y. 351; 24 Hun, 138; Rider v. New York R. Co., 65 How. Pr. 419.

9 Lamar v. Charlotte R. Co., 10 S. C. 476.

§ 259. Continuing trespasses.- If a railroad embankment is so constructed as to divert the water of a stream from its natural channel, the injury to a riparian proprietor below is a permanent one, and if he recovers judgment, it is a bar to future actions for the same cause, although the jury were erroneously instructed in that action not to consider future injuries by reason of the maintenance of the embankment.' So, a recovery of prospective damages, in an action for so constructing a road as to unnecessarily wash away the plaintiff's land by turning the current of the stream against it, is a bar to an action for subsequent damage, though caused by an unusual freshet." If a railroad company commits a trespass by digging a ditch on another's land, it does not acquire the right to re-enter and fill up the ditch. The continued existence of the ditch is not always a continuing trespass, and if, after the recovery of a judgment for the injury, new and unforeseen damage results, this does not give a new cause of action. If a railway embankment ponds back the water on the plaintiff's land, doing injury to a certain amount, and the water would have reached the plaintiff's land in another way had the embankment not been constructed, but would have done damage to a less amount, the plaintiff is entitled to recover only the difference between the two amounts. A railroad corporation is required to pay for injured works as it finds them, and not for increased works, but if the road causes injury to an unused surplus water power it is liable therefor at the market value of the water power for any useful purpose.5

1 Stodghill v. C., B. & Q. R. Co., 53 Iowa, 341; Powers v. Council Bluffs, 45 id. 652; East St. Louis Ry. Co. v. Eisentraut, 134 Ill. 96; Bird v. Hannibal R. Co., 30 Mo. App. 365; Chicago R. Co. v. Henneberry, 28 Ill. App. 110. See Great Laxey Mining Co. v. Clague, 4 App. Cas. 115; Ward v. Albemarle & R. R. Co., 112 N. C. 168; Fossum v. Chicago, etc. Ry. Co. (Minn.), 82 N. W. Rep. 979.

2 Fowle v. New Haven Co., 112 Mass. 334; 107 Mass. 352; ante, $ 210. See Morris v. Receivers, 65 Fed. Rep. 584;

Manson v. Maffra, 7 Vic. L. R. (L). 364.

3 Kansas Pacific Ry. Co. v. Mihlman, 17 Kansas, 224. See Cumberland Canal v. Hitchins, 65 Maine, 140; Sims v. Ohio River & C. Ry. Co. (56 S. C.), 33 S. E. Rep. 746; Rosenthal v. Taylor Ry. Co., 79 Texas, 325.

4 Workman v. Great Northern Ry. Co., 32 L. J. N. s. (Q. B.) 279. See § 161, ante.

5 Dorlan v. East Brandywine R. Co., 46 Penn. St. 520; Clark v. Penn. R. Co., 145 id. 438; Haslam v. Galena

§ 260. Municipal corporations - Flowage by.— A city or town which constructs a street across a watercourse without proper culverts or drains, or which negligently constructs or maintains the bridges or culverts in a highway across a natural stream, so as to cause the water to flow back upon and injure the land of another, is liable to an action of tort to the same extent that any corporation or individual would be liable for doing similar acts. So, if a municipal corporation changes the grade of a street and thereby diverts a natural stream,3 or causes the drainage to flow into a mill-race and corrupt the water, it is liable to an action unless a mode of assessing the damages is provided by statute. It is important to distinguish between natural streams, flowing within defined banks, and surface water, for the powers of a municipality are much greater with respect to the latter than the former. It is liable when, without express legislative powers, changing what would otherwise be the legal rights of the parties, it deprives others of their rights in a natural watercourse, or floods their lands by insufficient passage ways, although the watercourse may not form a natural stream. But it would not necessarily

Railroad, 64 Ill. 353; Young v. Harrison, 17 Ga. 30; 9 Ga. 359; Paterson v. Boom Co., 3 Dillon, 465; Willamett Falls Co. v. Kelly, 3 Oregon, 99. See King v. C., B. & Q. R. Co., 71 Iowa, 696.

1 Spelman v. Portage, 41 Wis. 144; Barden v. Portage, 79 Wis. 126; Maysville v. Stanton (Ky.), 14 S. W. Rep. 675; Hazard v. Council Bluffs, 87 Iowa, 51; Young v. Kansas City, 27 Mo. App. 101; Seifert v. Brooklyn, 101 N. Y. 136; Lehn v. San Francisco, 66 Cal. 76; San Antonio v. Gwynn (Texas), 15 S. W. Rep. 509; Wright v Wilmington, 92 N. C. 156.

2 Anthony v. Adams, 1 Met. 284, 285; Lawrence v. Fairhaven, 5 Gray, 110; Perry v. Worcester, 6 Gray, 544; Parker v. Lowell, 11 Gray, 353; Sprague v. Worcester, 13 Gray, 193; Wheeler v. Worcester, 10 Allen, 591; Hill v. Boston, 122 Mass. 358; Drew v. Westfield, 124 Mass. 461; Barns v. Hannibal, 71 Mo. 449; Mootry v. Dan

bury, 45 Conn. 550; Haynes v. Burlington, 38 Vt. 350; Stone v. Augusta, 46 Maine, 127; Baltimore v. Merryman, 86 Md. 584; Blizzard v. Danville, 175 Penn. St. 479; Keithsburg v. Simpson, 70 Ill. App. 467; Huntsville v. Ewing, 116 Ala. 576; Geurkink v. Petaluma, 112 Cal. 306; Willson v. Boise City (Idaho), 55 Pac. Rep. 887.

3 Helena v. Thompson, 29 Ark. 569; State v. Hanna, 97 Ind. 469; Conniff v. San Francisco, 67 Cal. 45.

4 Columbus v. Hydraulic Woollen Mills Co., 33 Ind. 435.

5 Gardiner v. Camden, 86 Maine, 377; Byrne v. Farmington, 64 Conn. 367; Albany v. Sikes, 94 Ga. 30; Helena v. Thompson, 29 Ark. 569, 574; infra, § 272.

6 Rose v. St. Charles, 49 Mo. 509; Burton v. Chattanooga, 7 Lea (Tenn.), 739; Allentown v. Kramer, 73 Penn. St. 406; Blakely v. Devine, 36 Minn. 53. A city which attempts to change