not have prevented the injury at moderate expense or by ordinary efforts.1 A city which employed a contractor to regulate and grade one of its streets was held liable, after the expiration of the contract, for excavations which the contractor had made, which it had the right and power to change by taking charge of and completing the work, and which diverted upon the plaintiff's land surface water which had previously flowed in a natural channel.

§ 270. Same-Sewers and gutters. If a city or town makes provision for carrying off the surface water of its streets and highways, which proves insufficient, and such water flows over upon the land of an adjoining proprietor to his injury, he will have no right of action. In constructing or raising the grade of a street or highway it is not bound to provide means of escape for accumulations of mere surface water thereby caused on adjacent land, nor is it liable for such obstruction. It is not liable when surface water collected in the catch-basins or gutters constructed by its agents beneath a highway percolates through the soil into an adjoining cellar,"

Iowa, 229; Russell v. Burlington, 30 id. 262; Damon v. Lyons City, 44 id. 276. See Guest v. Church Hill Com'rs (Md.), 45 Atl. Rep. 882; Downs v. Ansonia (Conn.), 46 Atl. Rep. 243. 1 Simpson v. Keokuk, 34 Iowa, 568; Bartle v. Des Moines, 38 id. 414; Cubit v. O'Dett, 51 Mich. 347.

2 Vogel v. New York, 92 N. Y. 10. 3 Ante, § 261; Barry v. Dowell, 8 Allen, 127; Wilson v. New York, 1 Denio, 595; Mills v. Brooklyn, 32 N. Y. 489; Kavanagh v. Brooklyn, 38 Barb. 232; Acker v. Newcastle, 48 Hun, 312; Schmidt v. Rowse, 35 Mo. App. 288; Fair v. Philadelphia, 88 Penn. St. 309; Carr v. Northern Liberties, 35 id. 324; Alden v. Minneapolis, 24 Minn. 254; Atchison v. Challis, 9 Kan. 603. So, if such water results from an extraordinary storm. Allen v. Chippewa Falls, 52 Wis. 430. See Leavenworth v. Casey, McCahon (Kan.), 125, 132; Logansport V. Wright, 25 Ind. 512; Indianapolis v.

Huffer, 30 id. 235; St. Louis v. Gurno, 12 Mo. 414.

4 Dickinson v. Worcester, 7 Allen, 19; Hoyt v. Hudson, 27 Wis. 656; Waters v. Bay View, 62 id. 642; Hen. derson v. Minneapolis, 32 Minn. 319; Springfield v. Spence, 39 Ohio St. 665; Buchert v. Boyertown, 1 Mona. (Penn.), 577; Stewart v. Clinton, 79 Mo. 603; North Vernon v. Voegeler, 89 Ind. 77; Rozell v. Anderson, 91 id. 591; Princeton v. Gieske, 93 id. 102: Green v. Harrison County, 61 Iowa, 311; Parker v. Nashua, 59 N. H. 402; Clark v. Wilmington, 5 Harr. (Del.) 243; Wilson v. New York, 1 Denio, 295; Gould v. Booth, 66 N. Y. 62; Lynch v. Mayor, 76 N. Y. 60. See Carr v. Northern Liberties, 35 Penn. St. 324.

3

or for the obstruction of surface water by a street horse-railroad track, properly authorized, constructed, and operated.1 A city, which, in the construction of a street, made a fill across a natural drain for surface water, and flooded an adjoining owner's property, was held liable in Kentucky. A municipal corporation is not liable for the non-exercise of its powers to construct gutters or other means of draining surface water; and it may abandon a sewer or drain, constructed for the purpose of carrying off surface water, if it does not leave the adjoining owners in a worse position than they would be if the sewer or drain had never been made. In Illinois, a city is liable for insufficiency of a gutter causing surface water to overflow upon an adjacent lot, but not for the entire damage, if the owner contributed thereto by stopping up a drain. In Iowa, a city is liable for the failure to provide, when practicable, temporary means for the escape of surface water while raising the grade of a street, causing its escape upon adjoining premises.?

§ 271. Same Artificial channels.- An owner of land has no right to rid his land of surface water, or superficially percolating water, by collecting it in artificial channels and discharging it through or upon the land of an adjoining proprietor This is alike the rule of the common and civil law;

1 Swenson v. Lexington, 69 Mo. 157. See Damour v. Lyons City, 44 Iowa, 276, contra.

2 Kemper v. Louisville, 14 Bush (Ky.), 87.

3 Lynch v. Mayor, 76 N. Y. 60; Mills v. Brooklyn, 32 N. Y. 489; Flagg v. Worcester, 13 Gray, 601; Roll v. Augusta, 34 Ga. 326; Fair v. Philadelphia, 88 Penn. St. 309.

Jackman v. Arlington Mills, 137 Mass 277; Murray v. Archer, 5 N. Y. S. 326; Foot v. Bronson, 4 Lans. 47; Hicks v. Silliman, 93 Ill. 255; Kauffman v. Griesemer, 26 Penn. St. 415; Martin v. Riddle, 26 id. 415, n.; Miller v. Laubach, 47 id. 154: Butler v. Peck, 16 Ohio St. 334; Culbertson v. Knight, 152 Ind. 121; Rychlicki v. St. Louis, 98 Mo. 497; 14 Am. St. Rep. 651;

4 Atchison v. Challis, 9 Kans. 603. Foster v. St. Louis, 71 Mo. 157; Davis

5 Divon v. Baker, 65 Ill. 518.

6 Paris v. Cracraft, 85 Ill. 294. 7 Cotes v. Davenport, 9 Iowa, 227; Ross v. Clinton, 46 Iowa, 606.

8 White v. Chapin, 12 Allen, 516; 9 Barkley v. Wilcox, 86 N. Y. 148; 19 Hun, 320; Gregory v. Bush, 64 Mich. 37; Fremont R. Co. v. Marley, 25 Neb. 138; Knight v. Brown, 25

v. Crawfordsville, 119 Ind. 1; 12 Am. St. Rep. 361 and note; Davis v. Londgreen, Neb. 43; Kearney v. Thoemason, 25 Neb. 147; Fremont R. Co. v. Marley, id. 138; Alcorn v. Sadler, W. Va. 808; Chapel v. Smith, 80 Mich. 100; Coverdale v. Smith (Cal.), 60 Pac. Rep. 851.

and a municipal corporation has no greater right in this respect than a private land-owner. The channel must be definite, but the injured land need not adjoin a highway, in order to make a city liable. A land-owner may drain his land by artificial ditches and thereby cause the water to pass more rapidly and with increased volume on the adjacent land of the lower proprietor, if the same water would not naturally flow in a different direction, and he acts with a proper regard for his neighbor's welfare, the relative advantage and injury to the two tenements being elements for the jury's consideration;3 and a riparian proprietor may collect, in an artificial channel, surface water which naturally flows from his estate into a watercourse running through or by such estate, and thereby discharge such water into the natural stream, although the

66 Miss. 221; Anderson v. Henderson, 124 Ill. 164; Dayton v. Drainage Com'rs, 128 Ill. 271; Weidekin v. Snelson, 17 Ill. App. 461; Livingston v. McDonald, 21 Iowa, 160; Hogenson v. St. Paul Ry. Co., 31 Minn. 224; Kelly v. Dunning, 39 N. J. Eq. 482; Gray v. Knoxville, 88 Tenn. 99; Paddock v. Somes, 102 Mo. 226; Schuster v. Albrecht, 98 Wis. 241; Resser v. Davis, 100 Iowa, 745; Keating v. Pittson, 8 Kulp, 421; Rath v. Zembleman, 49 Neb. 351; Stinson v. Fishel, 93 Iowa, 656; Lincoln St. Ry. Co. v. Adams, 41 Neb. 737; Sharpe v. Scheibel, 162 Penn. St. 341; Horton v. Sullivan, 97 Mich. 282; Wharton v. Stevens, 84 Iowa, 107; Martin v. Gainesville R. Co., 78 Ga. 307; Porter v. Durham, 74 N. C. 767. See Goldsmith v. Elsas, 53 Ga. 186; Gillis v. Nelson, 16 La. Ann. 275; Sowers v. Schiff, 15 La. Ann. 300; ante, § 264. Jutte v. Hughes, 67 N. Y. 267, decided that a landowner, who conducted from the roofs of his houses, in leaders and drains to the privies, water beyond their capacity, whereby it overflowed to the injury of an adjoining owner, was liable for his failure to prevent the overflow.

1 Weis v. Madison, 75 Ind. 241; North Vernon v. Voegler, 89 Ind. 79;

O'Brien v. St. Paul, 25 Minn. 331. See Noonan v. Albany, 79 N. Y. 470; Cumberland v. Willison, 50 Md. 138; Field v. West Orange, 36 N. J. Eq. 118; 37 id. 600; Evansville v. Decker, 84 Ind. 325; Blakely v. Devine, 36 Minn. 53; Manning v. Lowell, 130Mass. 21; Stanchfield v. Newton, 142 Mass. 110; Sullivan v. Phillips, 110 Ind. 320; Denver v. Rhodes, 9 Col. 554; Clark v. Rochester, 43 Hun, 271; Smith v. Atlanta, 75 Ga. 110; Davis v. Crawfordsville, 119 Ind. 1; Rarey v. Lee, 16 Ind. App. 121; Lafferty v. Girardsville, 1 Mona. (Penn.) 513; Young v. Commissioners, 134 IIL 569; Elgin v. Hoag, 25 Ill. App. 650; Keithsburg v. Simpson, 70 id. 467; Jacobson v. Van Boening, 48 Neb. 80; Jordan v. Benwood, 42 W. Va. 312; Yeager v. Fairmont, 43 W. Va. 259; Cannon v. St. Joseph, 67 Mo. App. 367; Nicolai v. Wilkins (Wis.), 80 N. W. Rep. 939; Carll v. Northport, 43 N. Y. S. 576; Bedell v. Sea Cliff, 46 id. 226.

2 Manning v. Lowell, 130 Mass. 21, 24; Collins v. Waltham, 151 Mass. 196.

3 Hughes v. Anderson, 68 Ala. 280; Sheehan v. Flynn, 59 Minn. 436. See ante, § 265.

latter is thereby increased in volume This right exists only with respect to waters of which the watercourse is the natural outlet; and if the plaintiff cuts trees on the bank of the ditch so that the banks cave in and discharge its waters, with the surface water added thereto, upon his land, this may be pleaded by counter-claim.3

§ 272. Same-Municipal and railroad corporations.— Cities and towns have no greater rights than individuals to collect in artificial channels upon their streets and highways mere surface water, distributed in rain and snow over large districts, and precipitate it upon the premises of private owners; or to construct ditches upon private lands for public

uses without compensation. A municipal corporation is liable for throwing water, collected in large quantities in a street or in the gutter of a street, upon the land of a private owner,2 unless it appears that the plaintiff could have prevented the injury by ordinary efforts or at moderate expense. But it is not liable when surface water is turned upon private land by a change in the grade of a street, or when, being collected in catch-basins or gutters, constructed by its agents beneath a street, it percolates thence into a cellar and causes injury. In Judge v. Meriden, a divided court held a city not liable for the act of its street commissioner in diverting an accumulation of surface water from a street through a sidewalk upon adjacent private premises. A city is liable if the embankment of a street horse railroad, properly authorized, causes the surface water of a large district to flow upon adjoining premises,' or if a similar injury is caused by its unlawful raising of a street above the established grade. A city cannot maintain a culvert across a street, and discharge a pond of stagnant water upon adjoining premises, even though it did not construct the culvert.10 In

sonville v. Lambert, 62 Ill. 519; Board of Health v. Maginnis Cotton Mills, 46 La. Ann. 806.

1 Cauble v. Hultz, 118 Ind. 13; Randall v. Christiansen, 76 Iowa, 169; Fromm v. Ide, 23 N. Y. S. 56; Houston v. Bryan, 2 Tex. Civ. App. 553; McCullough v. Denver, 39 Fed. Rep. 307; Albany v. Sikes, 94 Ga. 30; Downing v. More, 12 Col. 316.

2 Byrnes v. Cohoes, 67 N. Y. 204; Mairs v. Manhattan Real Estate Ass'n, 89 N. Y. 498; Indianapolis v. Lawyer, 38 Ind. 348; Damour v. Lyons City, 44 Iowa, 276; Kearney v. Thoemason, 25 Neb. 147; Gray v. Knoxville, 85 Tenn. 99; Bush v. Portland, 19 Oregon, 90; Bronson v. Wallingford, 54 Conn. 513; Collins v. Keokuk, 91 Iowa, 293; Harp v. Baraboo, 101 Wis. 368; Effingham v. Surrells, 77 Ill. Ap. 460; Thorntown v. Fugate, 21 Ind. App. 537; Beach v. Scranton, 5 Lack. L. News, 25; Watson v. Kingston, 43 Hun, 367.

3 Simpson v. Keokuk, 34 Iowa, 568. 4 Ibid.; McCray v. Fairmont (W. Va.), 33 S. E. Rep. 245; Lampe v. San Francisco, 124 Cal. 546; supra, § 269.

5 Kennison v. Beverly, 146 Mass. 467; Comanche v. Zettlemoyer (Tex. Civ. App.), 40 S. W. Rep. 641.

638 Conn. 90. Commissioners of highways cannot authorize individuals to drain their lands by digging a ditch along the highway. Johnson v. Rea, 12 Brad. (Ill.) 331.

7 Damour v. Lyons City, 44 Iowa, 276. See Swenson v. Lexington, 69 Mo. 157; Callahan v. Des Moines, 63 Iowa, 705.

8 Addy v. Janesville, 70 Wis. 401; Herring v. District of Columbia, 3 Mackey, 572; Atlanta v. Word, 78 Ga. 276; Spangler v. San Francisco, 84 Cal. 12; Morris v. Council Bluffs, 67 Iowa, 343; Gilluly v. Madison, 63 Wis. 518.

9 Kobs v. Minneapolis, 22 Minn. 150; Jewett v. Sweet, 178 Ill. 96, af

10 Crawfordsville v. Bond, 96 Ind. 236.