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York, New Hampshire, Rhode Island, New Jersey, and Wisconsin, 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,1 in collecting it for domestic purposes,2 or for the sole purpose of depriving an adjoining owner of it,3 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.5 In New Hampshire, a land-owner may disturb the natural drainage only to the degree necessary in the reasonable use of his own land, and what is such reasonable use is ordinarily for the jury to determine under appropriate instructions.

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§ 266. By the civil law, the lower of two adjacent estates owes a servitude to the upper to receive all the natural drainage; and the lower owner cannot reject nor can the upper withhold the supply, although either, for the sake of improving his land, according to the ordinary modes of good husbandry, may somewhat interfere with the natural flow of the water. Interference with the natural flow of surface water

1 Greatrex v. Hayward, 3 Exch. 291; Wood v. Waud, 3 Exch. 748; Broadbent v. Ramsbotham, 11 Exch. 602; Rawstron v. Taylor, 11 Exch. 369; Buffum v. Harris, 5 R. I. 243; Bethall v. Seifert, 77 Ind. 302; Cairo Railroad Co. v. Houry, Id. 364.

2 Rawstron v. Taylor, 11 Exch. 369. 3 Chatfield v. Wilson, 28 Vt. 49. 4 Rawstron v. Taylor, 11 Exch. 369. 5 Greatrex v. Hayward, 3 Exch. 291; Wood v. Waud, 3 Exch. 748; Broadbent v. Ramsbotham, 11 Exch. 602; Rawstron v. Taylor, 11 Exch. 369; Barkley v. Wilcox, 86 N. Y. 140; Buffum e. Harris, 5 R. I. 243; Chatfield v. Wilson, 28 Vt. 49. See Ennor v. Barwell, 2 Giff. 410, 423 et seq.; Curtis v. Ayrault, 47 N. Y. 73.

Bassett v. Salisbury Manuf. Co., 43 N. H. 569; Swett v. Cutts, 50 N. H. 459. See Hoyt. Hudson, 27 Wis.

656, and Hurdman v. North Eastern Railway, 3 C. P. D. 168, 173, as to reasonable use. See also Williamson v. Lock's Creek Canal Co., 76 N. C. 478.

7 Martin v. Jett, 12 La. 561; Lattimore v. Davis, 14 La. 161; Hays v. Hays, 19 La. 351; Adams v. Harrison, 4 La. Ann. 165; Delahoussaye v. Judice, 13 La. Ann. 587; Hooper v. Wilkinson, 15 La. Ann. 497; Barrow v. Laudry, 15 La. Ann. 681; Minor v. Wright, 16 La. Ann. 151; Gillis v. Nelson, Id. 275; Bowman v. New Orleans, 27 La. Ann. 502; Kauffman v. Griesemer, 26 Penn. St. 407; Martin v. Riddle, 26 Penn. St. 415 n; Miller v. Laubach, 47 Penn. St. 147; Hayes v. Hickleman, 68 Penn. St. 324; 8 Watts & S. 40; Butler v. Peck, 16 Ohio St. 334; Tootle v. Clifton, 22 Ohio St. 247; Gillham v. Madison

is regarded as a nuisance, for which nominal damages may be recovered without proof of actual damage.1 The courts of Pennsylvania, Illinois, North Carolina, California, and Louisiana have adopted this rule, and it has been referred to with approval by the courts of Ohio and Missouri.2

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§ 267. A land-owner may change the grade of its surface, and if, in the absence of grant, prescription, or mutual stipulation, mere surface water or the natural drainage is displaced, obstructed, or caused to accumulate upon adjoining land, or upon a street or highway,5 no right of action arises.6 In Adams v. Walker, the Supreme Court of Connecticut decided that a person cannot grade his lot and thereby turn surface water upon another's land to prevent it from flowing into his well, or for any other lawful purpose. But the general common-law rule is that "the right of an owner of land to occupy and improve it in such manner and for such purposes as he may see fit, either by changing the surface, or the erection of buildings or other structures thereon, is not restricted or modified by the fact that his own land is so situated with reference to that of adjoining owners, that an alteration in the mode of its improvement or occupation in any portion of it will cause water, which may accumulate thereon by rains and snows falling on its surface, or flowing on to it over the

County Railroad Co., 49 Ill. 484;
Gormley v. Sanford, 52 Ill. 158; Hicks
v. Silliman, 93 Ill. 255; Overton v.
Sawyer, 1 Jones (Law) 308; Porter v.
Durham, 74 N. C. 767; Laumier v.
Francis, 23 Mo. 181; Jones v. Han-
novan, 55 Mo. 462; Livingston v. Mc-
Donald, 21 Iowa, 160; Ogburn v.
Connor, 46 Cal. 346; Brown e. Mc-
Allister, 39 Cal. 573; Goldsmith v.
Elsas, 53 Ga. 186; McCormick v. Kan-
sas City Railroad Co., 70 Mo. 359.

1 Ibid. ; Tootle v. Clifton, 22 Ohio

St. 247.

2 Ibid.; Barkley v. Wilcox, 86 N. Y. 140, 145.

3 Luther v. Winnisimmet Co., 9 Cush. 171; Dickinson v. Worcester, 7

Allen, 19; Rawstron v. Taylor, 11 Exch. 369; Bigelow, C. J., in Gannon v. Hargadon, 10 Allen, 106.

4 Luther v. Winnisimmet Co., 9 Cush. 171; Goodale . Tuttle, 29 N. Y. 451.

5 Bangor v. Lansil, 51 Maine, 521. 6 Luther. Winnisimmet Co., 9 Cush. 171; Morrill v. Hurley, 120 Mass. 99; Parks v. Newburyport, 10 Gray, 28; Flagg v. Worcester, 13 Gray, 601; Dickinson v. Worcester, 7 Allen, 19; Bangor v. Lansil, 51 Maine, 521; Goodale v. Tuttle, 29 N. Y. 451. 734 Conn. 466.

8 Gannon v. Hargadon, 10 Allen, 106, 109; ante, § 265.

surface of adjacent lots, either to stand in unusual quantities on other adjacent lands, or pass into and over the same in greater quantities or in other directions than they were accustomed to flow." In Hurdman v. North Eastern Railway,1 it was held that a claim that rain-water, by reason of the defendant raising the surface of its land by earth deposits, made its way through the defendant's wall into the adjoining house of the plaintiff and caused substantial damage, disclosed a good cause of action. Cotton, L. J., in delivering the judgment of the court of appeal, distinguished Wilson v. Waddell2 as applying to damage resulting from surface water in the natural user of land, and said that "if any one, by artificial erection on his own land, causes water, even though arising from natural rainfall only, to pass into his neighbor's land, and thus substantially to interfere with his enjoyment, he will be liable to an action at the suit of him who is so injured." It is a question of negligence whether one who opens a covered drain in his land is liable for injury to his neighbor, caused by the sudden overflow of the drain after he had reclosed it.3

$268. According to the rule established in Massachusetts and New Jersey, an owner of land may erect structures upon it of any size, height, or depth, irrespective of their effect upon mere surface water or the natural drainage. In states where the rule of the civil law prevails, it appears that the owner of city property may be held to a stricter liability respecting surface water than the owner of an estate in an agricultural district.5 Bentz v. Armstrong,5 in Pennsylvania,

13 C. P. D. 168. See Broder v. Saillard, 2 Ch. D. 692, 700.

221.

22 App. Cas. 95.

from the roof of which rain water fell through a broken gutter upon his own land, and injured the foundations

3 Rockwood v. Wilson, 11 Cush. of an adjoining house, was liable.

Parks v. Newburyport, 10 Gray, 28; Bates v. Smith, 100 Mass. 181; Bowlsby v. Speer, 2 Vroom, 351; Gannon . Hargadon, 10 Allen, 106; Bellows . Sackett, 15 Barb. 96, decided that an owner of a house,

5 Bentz . Armstrong, 8 W. & S. 40; Young . Leedom, 67 Penn. St. 351; Vanderwiele v. Taylor, 65 N. Y. 341; Livingston v. McDonald, 21 Iowa, 160; Cincinnati Railroad Co. v. Ahr, 2 Cincin. 504; Whitney v. Sanders, 3 Pittsburgh, 226; Phinizy v.

decided that the owner of a city lot must so improve it as to prevent its surface water from annoying an adjoining owner. It is held in Illinois, that the owner of an inferior estate in the country is not bound to receive the surface water coming to his land in larger quantities or at different times than it would come but for the voluntary act of his neighbor, and that the collecting and discharging of surface water upon such estate in streams is a continuing trespass, for which successive actions will lie. An owner of vacant and unimproved city lots is not liable to an action for his failure to prevent mere surface water, accumulating thereon from natural causes, from passing thence upon the land of an adjoining proprietor to his injury, although the washings of streets and deposits of garbage by third persons may have caused the land to slope in that direction. If the owner of a city lot builds a house on it, damming up surface water on an adjacent lot so as to cause injury to the house, he cannot recover.4 Such an owner may be obliged, by reason of changes and improvements in the surrounding lots, to care for accumulations of surface water thereby caused on his lot. An owner of a city lot, on which surface water accumulates by the raising of a street and the adjacent land and became stagnant, is not liable for the nuisance.6

§ 269. Cities and towns have the same control over streets, highways, and public places, in respect to surface water, as private owners of land. If a city or town so constructs or changes the grade of a street or highway as to cause the surface water, naturally collecting thereon in rain and snow, to flow upon the lands of adjoining owners, no liability arises.7

Augusta, 47 Ga. 260; Freudenstein v.
Heine, 6 Mo. App. 287; Gormley v.
Sanford, 50 Ill. 158; Whitney v.
Sanders, 3 Pittsburgh, 226.

1 Mellor v. Pilgrim, 3 Brad. (Ill.) 476; 7 Id. 306; Hicks r. Silliman, 93 Ill. 255. See Templeton v. Voshloe, 72 Ind. 134; Cairo Railroad Co. v. Stevens, 73 Ind. 278.

2 Morrill v. Hurley, 120 Mass. 99; Vanderwiele v. Taylor, 65 N. Y. 341. 3 Ibid.

149.

4 Doerbaum v. Fischer, 1 Mo. App.

5 Thomas v. Kenyon, 1 Daly, 132. Barry v. Commonwealth, 2 Duv. (Ky.) 95.

7 Flagg v. Worcester, 13 Gray, 601; Turner v. Dartmouth, 13 Allen, 291;

But the land-owner may, by any act or structure on his own land, prevent the water coming upon his land from a highway through a drain or culvert. It has been held that a city, in changing the grade of a street, and thereby causing the water accumulating thereon to flow upon adjacent private property, will not be liable for damages thereby caused, unless the work was done in an unskilful and negligent manner, or the adjacent owner could not have prevented the injury at moderate expense or by ordinary efforts.3

§ 270. 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. A city or town in constructing or raising the grade of a street or highway 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.5 It is not liable for the obstruction of surface water by a street horse-railroad track, properly authorized, constructed, and operated. A city, which, in the construction of a street,

Gray, J., in Emery v. Lowell, 104 v. Northern Liberties, 35 Penn. St. Mass. 13, 16; Hubbard v. Webster, 118 Mass. 599; Wakefield v. Newell, 12 R. I. 75; Lynch v. New York, 76 N. Y. 60; Imler v. Springfield, 55 Mo. 119; Alden v. Minneapolis, 24 Minn. 254; Clark v. Wilmington, 5 Harr. (Del.) 243; Roll v. Augusta, 34 Ga. 326.

1 Franklin v. Fisk, 13 Allen, 211. 2 Muscatine v. Wallace, 4 G. Greene (Iowa) 373; Ellis v. Iowa City, 29 Iowa, 229; Russell v. Burlington, 30 Iowa, 262; Damon v. Lyons City, 44 Iowa, 276.

3 Simpson v. Keokuk, 34 Iowa, 568 ; Bartle v. Des Moines, 38 Iowa, 414.

Barry. Lowell, 8 Allen, 127;
Wilson v. New York, 1 Denio, 595;
Mills v. Brooklyn, 32 N. Y. 489; Kava-
nagh v.
Brooklyn, 38 Barb. 50; Fair v.
Philadelphia, 88 Penn. St. 309; Carr

324; Alden v. Minneapolis, 24 Minn. 254; Atchison v. Challis, 9 Kan. 603. So, if such water results from 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 Ind. 235; St. Louis v. Gurno, 12 Mo. 414.

5 Dickinson v. Worcester, 7 Allen, 19; Hoyt v. Hudson, 27 Wis. 656; Clark v. Wilmington, 5 Harr. (Del.) 243; Wilson v. New York, 1 Denio, 595; Gould v. Booth, 66 N. Y. 62; Lynch v. Mayor, 76 N. Y. 60. See Carr v. Northern Liberties, 35 Penn. St. 324.

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

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