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unskillf ully,i or negligently suffers it to be out of repair,2 or makes a change in the structure, or has notice that such change is made by others, by means of which the passage of the water or sewage is obstructed.3 If the authorities of a city change the channel of a drain so as to throw the water flowing therein upon the land of A, A cannot obstruct the channel so as to cause the water to flow back upon the land of B lying above his own.4 The rule that a municipal corporation is not required to supply means of escape for drainage or sewage does not apply when the necessity for the drainage is caused by the act of the corporation itself.6 It is competent for the legislature to authorize a city to turn a natural stream into a sewer,6 and the plaintiff must show special injury to entitle him to relief beyond the statute.7
§ 262. Cities have been held not liable for injury to others caused by the overflow of their sewers in the following cases: where the sewer became choked with sand and mud from the streets, and it did not appear that it was liable to become obstructed under ordinary circumstances, or that the city had knowledge of the obstruction, or that there was any fault in the construction of the sewer;8 where the city omits to construct a sewer, or fails to make it of sufficient size, the
Vestry of St. Pancras, L. Ii. 9 C. P. 316; Fleming v. Manchester, 44 L. T. N. s. 517; Simmer v. St. Paul, 23 Minn. 408.
8 Nims v. Mayor, 59 N. Y. 500; Donohue v. New York, 3 Daly, 65; Niles' Works v. Cincinnati, 2 Disney (Ohio) 400.
4 Amick v. Tharp, 13 Gratt. 564.
6 Byrnes v. Cohoes, 67 N. Y. 204.
6 Butler v. Worcester, 112 Mass. 541.
7 Washburn & Moen Co. v. Worcester, 110 Mass. 458; Workman v. Worcester, 118 Mass. 168.
8 Smith v. Mayor, 66 N. Y. 295; 4 Hun, 637; Wheeler v. Worcester, 10 Allen, 591.
duty of determining the location and dimensions of sewers being in its nature judicial;i where the injury is caused by an error of judgment, as to the required capacity of the sewer, on the part of a competent engineer employed by the city;2 where extraordinary and exceptional floods cause the overflow, and the structure is of sufficient capacity for all ordinary purposes and for such floods as have previously occurred;8 where a public sewer overflows by the negligence of the city, but discharges through a private drain of the plaintiff which he has connected with the sewer without the permit required by an ordinance,4 or when surface water flows into a cellar which is not connected by a drain with the public sewer.6
i Mills v. Brooklyn, 32 N. Y. 480; Flagg v. Worcester, li5 Gray, 601; Cart. v. Northern Liberties, 35 Penn. St. 324; Little Rock v. Willis, 27 Ark. 572; Fair v. Philadelphia, 88 Penn. St. 309; Collins v. Philadelphia, 93 Penn. St. 272; Harper v. Milwaukee, 30 Wis. 305. This rule is not applicable where the necessity for the drainage .or outlet is caused by the act of the corporation itself, as by diverting water and throwing it upon the plaintiff's premises without providing an outlet. Byrnes v. Cohoes, 67 N. Y. 204.
2 Van Pelt v. Davenport, 42 Iowa, 308. But see Helena v. Thompson,
29 Ark. 569; Atchison o. Challis, 9 Kans. 612; Detroit v. Corey, 9 Mich. 105; Philadelphia Railroad Co. v. Anderson, 94 Penn. St. 351. In Van Pelt v. Davenport, just cited, held also that the city is not released by the fact that the money for the construction of the culvert was appropriated by the board of supervisors of the county.
"Madison v. Ross, 3 Ind. 236; Coldwater v. Tucker, 36 Mich. 474; Powers v. Council Bluffs, 50 Iowa, 197.
* Ranlett v. Lowell, 126 Mass. 431. See Terry v. New York, 8 Bosw. 504.
6 Barry i>. Lowell, 8 Allen, 127.
SURFACE AND SUBTERRANEAN WATERS.
263, 264. Surface water defined.
265. The common law as to such water.
266. The rule of the civil law.
267. Rights in surface water not analogous to rights in watercourses.
268. Shutting out surface water.
269. Rights and duties of municipal corporations as to flow of surface
water in streets.
270. Ibid. — Duty as to sewers and gutters.
271. Surface water cannot be lawfully collected and discharged through
272,273. Municipal and railroad corporations have no greater rights than individuals at common law.
274. Land-owner may drain into a watercourse by artificial channels.
275. He may, at common law, shut out mere surface water by embanking.
276. But he cannot do this where the rule of the civil law is adopted.
277. The right to exclude surface water flowing in highways.
278. Liability for discharge of polluted surface water.
279. No prescriptive rights acquirable in the flow of surface waters not
collected in artificial channels.
280. Percolating waters belong to the owner of the land in which they
281. Underground water currents, having a defined channel and course,
are subject to the law of surface watercourses.
282. Acton v. Blnndell. 283,284. Later English decisions.
285. Wheatley v. Baugh.
286. Effect of private agreements on the rights of the parties thereto.
287. Harwood v. Benton. — Cole Silver Mining Co. t>. Virginia Water Co.
288. Pollution of wells and percolating waters actionable.
289. The sinking of land, caused by the withdrawal of subterranean
waters, apparently not actionable.
290. Malicious motive, in draining a neighbor's well or percolating waters,
may afford a cause of action.
291. Property in petroleum oil beneath the surface. 292,293. Eaves-drip.
294. Mines. — Flow of subterranean waters as affected by the acts of , adjoining mine-owners.
295. Increasing the flow of such waters artificially is actionable.
296. Fletcher v. Rylands.
297, 298. Proximate and remote cause.
§ 263. Water spread ovep the surface of land, 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. Mere surface water may be said to form a watercourse at the point where it begins to have a reasonably well-defined channel with bed and banks or sides, although the stream itself may be very small, and the water may not flow continuously ;1 and surface water ceases to be such after entering within the banks of a watercourse.2 By the common law, no rights can be claimed jure naturae in the flow of surface water, and its detention, expulsion, or diversion is not an actionable injury, even when 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.i
§ 264. 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 defmed banks before flowing again in a definite channel.2 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 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.3 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.4
§ 265. According to the rule of the common law, which is accepted in England, Massachusetts, Maine, Vermont, New