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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.i 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.2 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

§ 258. 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.4 It is not liable to an action for damages if it fails to construct a culvert or bridge so as to pass extraordinary floods;6 if without negligence an accumulation of water is

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set free by the breaking of a culvert in an embankment and the land below is flooded;i 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,2 or washing away the banks of those below;8 if the road is constructed without a culvert across a cranberry marsh, one side of which afterwards becomes dry;4 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;6 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;6 nor is it liable for interest on the damages annually sustained by the plaintiff.7

§ 259. 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 judgmeut, 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.8 So, a recovery of prospective damages, in an action for so constructing the road as to unnecessarily wash away the plaintiffs 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.9 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 exist

v. Worcester, 13 Gray, 193; Allen v. 35 N. H. 560; Mason v. Kennebec
Chippewa Falls, 52 Wis. 430; 11linois Railroad, 31 Maine, 217.
Central Railroad Co. v. Bethel, 11 6 Moyer v. New York Central Rail-
Brad. (1ll.) 17. road Co., 88 N. Y. 351.

i Mills v. Greenville Railroad Co., 7 Lamar v. Charlotte Railroad Co.,

13 S. C. 97. 10 S. C. 476.

3 Mellen v. Western Railroad, 4 8 Stodghill c. C. B. & Q. R. Co., 53 Gray, 301. Iowa, 341; Powers v. Council Bluffs,

8 Ante, § 248 a. 45 Iowa, 652. See Great Laxey Mine

4 Lyon v. Green Bay Railway Co., Co. v. Clague, 4 App. Cas. 115.

42 Wis. 538; Old Colony Railroad Co. 8 Fowle v. New Haven Co., 112 c. Miller, 125 Mass. 1. Mass. 334; 107 Mass. 352; ante, § 210.

1 Johnson v. Atlantic Railroad Co.,

ence of the ditch is not 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.i If a railway embankment ponds back the water on the plaintiffs 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.2 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.8

§ 260. A city or town which constructs a street across a watercourse without proper culverts or drains,4 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.6 So, if a municipal corporation changes the grade of a street and thereby diverts a natural stream,6 or causes the drainage to flow into a mill-race and corrupt the water,7 it is liable to an action unless a mode of assessing the damages is provided by statute. It is important to distinguish between natural

i Kansas Pacific Railway v. Mihlman, 17 Kansas, 224. See Cumberland Canal v. Hitchins, 05 Maine, 140.

- Workman v. Great Northern Railway Co., 32 L. J. N. s. (Q. B.) 279.

8 Dorian c. East Brandywine Railroad Co., 40 Penn. St. 520; Haslam v. Galena Railroad, 64 1ll.353; Young v. Harrison, 17 Ga. 30; 0 Ga. 359; Patterson v. Boom Co., 3 Dillon, 465; Willamett Falls Co. v. Kelly, 3 Oregon, 99.

4 Spelman v. Portage, 41 Wis. 144. • Anthony v. Adams, 1 Met. 284,

285; Lawrence v. Fairhaven, 5 Gray, 110; Perry v. Worcester, 0 Gray, 544; Parker e. 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. 401; Barns v. Hannibal, 71 Mo. 449; Mootry v. Danbury, 45 Conn. ",",0; Haynes v. Burlington, 38 Vt. 350; Stone v. Augusta, 40 Maine. 127.

6 Helena c. Thompson, 29 Ark. 569.

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

streams, flowing within defined bankst and surface water, for the powers of a municipality are much greater with respect to the latter than the former.i 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.2 But it would not necessarily be liable for similar injuries caused by surface water.3 If the land-owner opens an artificial watercourse across a highway already established through his land, he is bound to maintain a way for the use of the public over the watercourse, but the public in locating a highway, cannot shut up a watercourse, whether artificial or natural, but may make a way over it by means of bridges.4 A town is not responsible for backwater caused by an obstruction placed in a culvert by a mere wrongdoer.6

§ 261. When the legislature confers upon a municipal corporation authority to lay out and construct common sewers and drains, and provision is made by statute for the assessment, under special proceedings, of damages to persons whose estates are thereby injured, an action at law or bill in equity may be maintained by an individual suffering special damage from the nuisance, if caused by an excess of the powers granted, or by negligence in the mode of carrying out the system legally adopted, or omission to take due

> Helena v. Thompson, 29 Ark. 569, 18; Woodruff v. Neal, 28 Conn. 165;

574. Moron i> . McClearns, 63 Barb. 185;

sRose i>. St. Charles, 49 Mo. 509; Woodring v. Fords Township, 28 Penn.

Burton v. Chattanooga, 7 Lea (Tenn.) St. 355; Fleming's Appeal, 65 Penn.

739; Allentown v. Kramer, 73 Penn. St. 444; Merrill v. Kalamazoo, 35

St. 406. A city which attempts to Mich. 211; Nobles v. Langly, 66 N

change the channel of a stream, must C. 287; Boiling v. Mayor, 3 Rand,

substantially comply with the require- 563; Eyber v. County Commissioners,

ments of its chartev. MeKcrnan v. 49 Md. 257.

Indianapolis, 38 Ind. 223. * Peck v. Ellsworth, 36 Maine, 393;

3 Ibid.; I'flegar v. Hastings Rail- Steele v. South Eastern Railway Co., way Co., 28 Minn. 510. 16 Q. B. 550; Hoagland v. Sacra

4 Perley v. Chandler, 6 Mass. 454; mento, 52 Cal. 142. Lowell v. Locks & Canals, 104 Mass.

precautions to guard against the consequences of its operation ;1 but not for injuries which are caused by a defect or insufficiency in the plan or system of drainage adopted under the authority conferred by the legislature, or which are the necessary result of the exercise of the authority so conferred.2 The corporation is liable in an action of tort, if, without authority of law, it collects surface or other waters in a public sewer, and empties them upon the land of an individual to his injury,8 either immediately or by the force of gravitation;4 if it drains water through sewers and drains into a canal owned by a private corporation and thereby causes injury to the canal;6 if, in like manner, it obstructs a mill-race ;6 if it discharges mud and filth into a private dock so as to interfere with the access thereto and the right to lay vessels thereat;7 if it constructs the sewer

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Paul, 23 Minn. 408; Phinizy v. Augusta, 47 Ga. 260; Troy v. Coleman, 68 Ala. 570; Union Springs v. Jones, 58 Ala. 654. In such cases, the cause of action is not neglect in the performance of a corporate duty, rendering a public work unfit for the purposes for which it was intended, but it is the doing of a wrongful act, causing a direct injury to the property of another outside the limits of the public work. Hill v. Boston, 122 Mass. 368.

4 Woodward v. Worcester, 121 Mass. 245.

6 Locks and Canals v. Lowell, 7 Gray, 223.

6 Columbus v. Woollen Mills, 33 Ind. 436; Elgin Hydraulic Co. v. Elgin, 74 111. 433.

7 Haskell v. New Bedford, 108 Mass. 208; Clark v. Peckham, 9 R. I. 465; Richardson r. Boston, 19 How. 263. A city is also liable for diverting n natural stream which deposits sand and earth in front of the plaintiff's wharf and impairs its value. Barron v. Baltimore, 4 Am. Jur. 203; ante, § 123.

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