tiff had no right that the ruts made on the defendant's land should be kept open."

The judge declined so to rule, and instructed the jury as follows: "The plaintiff and defendant, being conterminous proprietors, had each the right to develop, improve and enjoy his own estate; and if, as an incident to the exercise of this right, the estate of the other was injured, he would have no legal remedy for such injury. Each, on his own estate, might do acts to prevent the other's exercise of this right from being injurious to him; and if in so doing the other's development, improvement and enjoyment of his estate was restricted, for such restrictions, if injurious, he would have no legal remedy. But neither would have the right to transfer or divert a cause of injury to him, arising from the exercise of the right stated, by the other, to another conterminous proprietor.

The defendant, for

"To apply these principles to the present case. the purpose of repairing and enjoying the way over his estate, had a right to exclude surface water from his estate and from his way, which flowed from conterminous estates; and if as an incident to the exercise of this right such surface water flowed upon the plaintiff's land, the plaintiff has no remedy against the defendant; if the defendant failed to exercise this right, and the consequence of this failure was that water flowed from estates conterminous to that of the defendant upon the defendant's land, and thence upon the plaintiff's land, to his injury, he would have no remedy against the defendant; but if surface water flowing from land conterminous with the land of the defendant upon the defendant's land, which water in its natural course would not have flowed upon the plaintiff's land, was by the act of the defendant diverted thence upon the plaintiff's land to his injury, the plaintiff would have a remedy against the defendant for such injury, notwithstanding the act of diverting such surface water by the defendant was an act of repair of his way, and was for the purpose of preventing said way from being injured by such surface water."

The judge further instructed the jury that "the defendant could have prevented the water from coming upon his own land, and if in doing so he had diverted the water upon the land of the plaintiff, he would not be liable for so doing; but if the defendant suffered the water to flow in upon his land, then the case was different, and having once suffered the water to come upon his land, if he diverted it upon the land of the plaintiff, to his injury, where it would not have gone in its natural course, he was liable; and if the turfs placed in the ruts by the defendant caused water thus to flow upon the plaintiff's land which but for said turfs would not have gone there, then the defendant is liable.”

The jury returned a verdict for the plaintiff, and the defendant alleged exceptions.

D. E. Ware, for the defendant.

J. Rutter, for the plaintiff.

BIGELOW, C. J. It seems to us that the instructions for which the

defendant asked should have been given, and that those under which the case was submitted to the jury were not in accordance with the principles recognized and adopted in cases recently adjudicated by this court. 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 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. Luther v. Winnisimmet Co., 9 Cush. 171; Flagg v. Worcester, 13 Gray, 601; Dickinson v. Worcester, 7 Allen, 19. The point of these decisions is, that where there is no watercourse by grant or prescription, and no stipulation exists between conterminous proprietors of land concerning the mode in which their respective parcels shall be occupied and improved, no right to regulate or control the surface drainage of water can be asserted by the owner of one lot over that of his neighbor. Cujus est solum, ejus est usque ad cœlum, is a general rule, applicable to the use and enjoyment of real property, and the right of a party to the free and unfettered control of his own land above, upon and beneath the surface cannot be interfered with or restrained by any considerations of injury to others which may be occasioned by the flow of mere surface water in consequence of the lawful appropriation of land by its owner to a particular use or mode of enjoyment. Nor is it at all material, in the application of this principle of law, whether a party obstructs or changes the direction and flow of surface water by preventing it from coming within the limits of his land, or by erecting barriers or changing the level of the soil, so as to turn it off in a new course after it has come within his boundaries. The obstruction of surface water or an alteration in the flow of it affords no cause of action in behalf of a person who may suffer loss or detriment therefrom against one who does no act inconsistent with the due exercise of dominion over his own soil. This principle seems to have been lost sight of in the instructions given to the jury. While the right of the owner of land to improve it and to change its surface so as to exclude surface water from it is fully recognized, even although such exclusion may cause the water to flow on to a neighbor's land, it seems to be assumed that he would be liable in damages, if, after suffering the water to come on his land, he obstructed it and caused it to flow in a new direction on land of a conterminous proprietor where it had not previously been accustomed to flow. But we know of no such distinction. A party may improve any portion of his land, although he may thereby cause the surface water flowing thereon, whencesoever it may come, to pass off in a different direction and in larger quantities

than previously. If such an act causes damages to adjacent land, it is damnum absque injuria. On this point the instructions were clearly Exceptions sustained.1

erroneous.

APPEAL from judgment of the General Term of the Supreme Court, in the Fourth Judicial Department, affirming a judgment in favor of plaintiffs entered upon a decision of the court on trial at Special Term. This action was brought to restrain defendant from obstructing the flow of water in a watercourse running from the lands of plaintiffs on to and across the lands of defendant below, and to compel him to remove obstructions placed by him in the stream.

The facts found were substantially these: Plaintiffs operated a quarry upon their lands near said watercourse, which started from a spring upon plaintiffs' lands. After the lands were cleared up over which the stream passed, and many years prior to the acts complained of, the Owners, in order to direct and control the flow of the water in the stream, dug ditches and confined the flow therein; plaintiffs dug such a ditch on their lands following the general course of the natural stream to the boundary line of their lands and those of defendant adjoining. This ditch was continued by the then owner of defendant's premises across the same. This ditch was from time to time changed and improved, and when defendant went into possession, the ditch across his lands was walled up and covered over. The ditch was capable of holding all the water that ran in the stream except in cases of high water. Plaintiffs worked their quarry during the summer season, and had at the time of the occurrence in question excavated above three fourths of an acre to a depth of from five to twelve feet. Small watercourses were cut in progress of the excavation, the water therefrom ran into the bed of quarry; in the winter the snows drifted into the quarry and melted; in the spring the surface waters from the surrounding lands also flowed into it. The waters so accumulating in said quarry, if it had not been excavated, would naturally descend and flow into said watercourse. In the spring of each year plaintiffs pumped the water from the quarry into said watercourse. The court found that the flow of water while pumps are at work is increased in amount, but that the flow is no greater than in the earlier spring months, and that the capacity of the watercourse as it runs in said ditch is ample to carry off all the water pumped therein at any time, together with the other water running

the

the

the

1 But see Miller v. Laubach, 47 Pa. 154; Adams v. Walker, 31 Conn. 466.

therein. In May, 1876, and before plaintiffs had begun to pump the water from their quarry, defendant took up the stone covering of the ditch upon his land, filled it with earth and stone so as to prevent the flow of water therein, and built a dam across said watercourse near the line between his and plaintiffs' land, which prevented the flow of any water therein until the water had risen to the top of said dam, thereby causing the water to set back into and to fill up plaintiffs' quarry and to overflow their adjoining lands.

W. F. Cogswell, for appellant.

S. E. Filkins, for respondents.

ANDREWS, J. Watercourses are the means which nature has provided for the drainage of the country through which they pass, and from the natural servitude of lands upon a watercourse to receive the waters flowing therein from the lands above, springs the right of the owner of the superior heritage to have the water from his lands, of which the watercourse is the natural outlet, drained into and carried off thereby, and the duty of the owner of the inferior and servient tenement not to interfere with or obstruct its passage. But the right to the use of a watercourse for the discharge of surface or other waters exists only in respect of waters of which the watercourse is the natural outlet, and it does not justify the diversion and turning of the water of one stream into another, not its natural channel, thereby subjecting lands on the stream into which the diversion is made to the servitude or easement of a water-way for the water thus discharged into it. This is the principle upon which several of the cases to which the appellant refers were decided, and they have no application to the case before us. Merritt v. Parker, 1 N. J. 460; Tillotson v. Smith, 32 N. H. 90; Mayor, &c. of Baltimore v. Appold, 42 Md. 442.

The right of an owner of lands, through which a watercourse runs, to have the same kept open, and to discharge therein the surface water, which naturally flows thereto, is not however limited to the drainage and discharge of surface water into the stream in the same precise manner as when the land was in a state of nature, and unchanged by cultivation or improvements. The owner of lands drained by a watercourse may change and control the natural flow of the surface water therein, and by ditches or otherwise accelerate the flow, or increase the volume of water which reaches the stream; and if he does this in the reasonable use of his own premises, he exercises only a legal right, and incurs no liability to a lower proprietor. Waffle v. N. Y. C. R. R. Co., 53 N. Y. 11; Miller v. Laubach, 47 Pa. St. 154. This right is subject to the qualification that one owner cannot, by artificial arrangements on his land, concentrate and discharge into the stream surface water, in quantities beyond the natural capacity of the stream, to the damage of other owners. Noonan v. City of Albany, 79 N. Y. 470. The interests of society are promoted by the cultivation and improvement of the soil, the working of mines, and by other industries connected with the use of land; and the rule of law does not prevent the use of water

courses for artificial drainage, although the volume of the stream is thereby somewhat enlarged, and the water is discharged at a different time or manner from what it would be if the land was kept in a state of nature, provided no material injury is occasioned to other riparian owners. These views are decisive of this case. The plaintiff's in opening the quarry on their premises, were exercising a lawful right. The excavation made formed a reservoir into which the surface water from the contiguous lands collected, and in the spring, when the plaintiff's commenced their operations, they pumped this water, together with that arising from the melting snows, and what came from the small watercourses cut off by the excavation, into the watercourse which lower down crossed the defendant's farm.

The court found that this water, if the excavation had not been made, would have naturally descended and flowed into the stream, and that although the flow of water when the pumping was going on was greater than it otherwise would have been, the natural capacity of the watercourse was sufficient to carry off the water pumped into it, together with the other water running in the stream, and there was no finding that the defendant sustained any damage from the acts of the plaintiffs.

Under these circumstances, the act of the defendant, in filling up the channel and obstructing the flow of the water, was unlawful, and the judgment should therefore be affirmed.

All concur except DANFORTH, J., taking no part, having been of counsel. Judgment affirmed.1

BLODGETT v. STONE.

SUPREME COURT OF NEW HAMPSHIRE. 1880.

[Reported 60 N. H. 167.]

CASE, for diverting the water of a natural stream from the plaintiff's aqueduct. The defendant offered a brief statement alleging that the plaintiff had previously filed a bill in equity for an injunction against the defendant, based substantially on the facts now stated in his declaration, upon which an application for a temporary injunction had been denied after a full hearing of the facts before one of the justices of the court, and the equity suit had been entered "neither party," after the defendant had filed an answer denying the equity of the bill. No replication was filed, and no decree was ever entered up. The brief statement wes rejected, and the defendant excepted. The defendant requested the following instructions to the jury, which the court declined to give,

1 See Jackman v. Arlington Mills, 187 Mass. 277.