and the defendant excepted: "If the jury find that what Stone did was done from malice, still he is not liable unless his act caused actual damage to the plaintiff, and then only for the actual damages caused to the plaintiff; and the verdict in that case would settle nothing as to the legal rights of the parties." Verdict for the plaintiff.

Ladd and Fletcher, for the defendant.

Ray, Drew, and Heywood, for the plaintiff.

CLARK, J. The facts stated in the brief statement constituted no defence, and it was properly rejected. The proceedings in the bill in equity were immaterial. No decree was entered up. If the judge who heard the application for a temporary injunction denied it on the merits, it would not be a bar to a subsequent hearing on the bill, and it is no bar to this suit. The request for instructions, that the defendant was not liable unless his act caused actual damage to the plaintiff, was rightly refused. The plaintiff was entitled to a verdict for nominal damages upon proof of the infringement of his right, although no actual injury was shown. Tillotson v. Smith, 32 N. H. 90; Bassett v. Company, 28 N. H. 438; Woodman v. Tufts, 9 N. H. 88; Munroe v. Stickney, 48 Me. 462; Chaffee v. Pease, 10 Allen, 537; Stowell v.

Lincoln, 11 Gray, 434.

Judgment on the verdict.

SMITH, J., did not sit; the others concurred.

BARKLEY v. WILCOX.

COURT OF APPEALS OF NEW YORK. 1881.

[Reported 86 N. Y. 140.]

APPEAL from judgment of the General Term of the Supreme Court, in the second judicial department, entered upon an order made December 8, 1879, which affirmed a judgment in favor of plaintiff entered upon the report of a referee. (Reported, 19 Hun, 320.)

This action was brought to recover damages for injuries alleged to have been sustained by the obstruction of the natural flow of surface water from plaintiff's lot over and across that of defendant.

The facts are sufficiently stated in the opinion.

C. E. Cuddeback, for appellant.

J. M. Allerton, for respondent.

ANDREWS, J. This is not the case of a natural watercourse. A natural watercourse is a natural stream, flowing in a defined bed or channel, with banks and sides, having permanent sources of supply. It is not essential to constitute a watercourse that the flow should be uniform or uninterrupted. The other elements existing, a stream does not lose the character of a natural watercourse, because in times of

drought, the flow may be diminished, or temporarily suspended. It is sufficient if it is usually a stream of running water. (Angell on Watercourses, § 4; Luther v. The Winnisimmet Co., 9 Cush. 171.)

The parties in this case own adjacent lots on a street near a village, but not within the corporate limits. The findings are, that the natural formation of the land was such, that surface water from rains and melting snows would descend from different directions, and accumulate in the street in front of the plaintiff's lot, in varying quantities according to the nature of the seasons, sometimes extending quite back upon the plaintiff's lot; that in times of unusual amount of rain, or thawing snow, such accumulations, before the grading of the defendant's lot, were accustomed to run off over a natural depression in the surface of the land across the defendant's lot, and thence over the lands of others, to the Neversink River; that when the amount of water was small, it would soak away in the ground; that in 1871, the defendant built a house on his lot, and used the earth excavated in digging the cellar to improve and better the condition of his lot, by grading and filling up the lot and sidewalk in front of it, about twelve inches, and on a subsequent occasion he filled in several inches more; that in the spring of 1875 there was an unusually large accumulation of water from melting snow and rains in front of, and about the plaintiff's premises, so that the water ran into the cellar of his house, and occasioned serious damage; that the filling in of the defendant's lot had the effect to increase the accumulation of water on the plaintiff's lot, and contributed to the injury to his property.

There was no natural watercourse over the defendant's lot. The surface water, by reason of the natural features of the ground, and the force of gravity, when it accumulated beyond a certain amount in front of the plaintiff's lot, passed upon, and over the lot of the defendant. The discharge was not constant, or usual, but occasional only. There was no channel or stream, in the usual sense of those terms. In an undulating country, there must always be valleys and depressions, to which water, from rains or snow, will find its way from the hill-sides, and be finally discharged into some natural outlet. But this does not constitute such valleys or depressions, watercourses. Whether, when the premises of adjoining owners are so situated, that surface water falling upon one tenement, naturally descends to and passes over the other, the incidents of a watercourse apply to, and govern the rights of the respective parties, so that the owner of the lower tenement may not, even in good faith and for the purpose of improving or building upon his own land, obstruct the flow of such water to the injury of the Owner above, is the question to be determined in this case. This question does not seem to have been authoritatively decided in this State. It was referred to by Denio, Ch. J., in Goodale v. Tuttle, 29 N. Y. 467, where he said: "And in respect to the running off of surfacewater caused by rain or snow, I know of no principle which will pre

vent the owner of land from filling up the wet and marshy places on his own soil, for its amelioration and his own advantage, because his neighbor's land is so situated as to be incommoded by it. Such a doctrine would militate against the well-settled rule, that the owner of land has full dominion over the whole space above and below the surface." The case in which these observations were made did not call for the decision of the question, but they show the opinion of a great judge upon the point now in judgment. Similar views have been expressed in subsequent cases in this court, although in none of them, it seems, was the question before the court for decision. (Vanderwiele v. Taylor, 65 N. Y. 341; Lynch v. The Mayor, 76 Id. 60.) The question has been considered by courts in other States, and has been decided in different ways. In some, the doctrine of the civil law has been adopted as the rule of decision. By that law, the right of drainage of surface waters, as between owners of adjacent lands, of different elevations, is governed by the law of nature. The lower proprietor is bound to receive the waters which naturally flow from the estate above, provided the industry of man has not created or increased the servitude. (Corp. Jur. Civ. 39, tit. 3, §§ 2, 3, 4, 5; Domat [Cush. ed.], 616; Code Napoléon, art. 640; Code Louisiana, art. 656.) The courts of Pennsyl vania, Illinois, California, and Louisiana, have adopted this rule, and it has been referred to with approval by the courts of Ohio and Missouri. (Martin v. Riddle, 26 Penn. St. 415; Kauffman v. Griesemer, Id. 407; Gillham v. Madison Co. R. R. Co., 49 Ill. 484; Gormley v. Sanford, 52 Id. 158; Ogburn v. Connor, 46 Cal. 346; Delahoussaye v. Judice, 13 La. Ann. 587; Hays v. Hays, 19 La. 351; Butler v. Peck, 16 Ohio St. 334; Laumier v. Francis, 23 Mo. 181.) On the other hand, the courts of Massachusetts, New Jersey, New Hampshire, and Wisconsin, have rejected the doctrine of the civil law, and hold that the relation of dominant and servient tenements does not by the common law apply between adjoining lands of different owners, so as to give the upper proprietor the legal right, as an incident of his estate, to have the surface water falling on his land discharged over the land of the lower proprietor, although it naturally finds its way there; and that the lower proprietor may lawfully, for the improvement of his estate and in the course of good husbandry, or to make erections thereon, fill up the low places on his land, although by so doing he ob structs, or prevents, the surface water from passing thereon from the premises above, to the injury of the upper proprietor. (Luther v. The Winnisimmet Co., 9 Cush. 171; Parks v. Newburyport, 10 Gray, 28; Dickinson v. Worcester, 7 Allen, 19; Gannon v. Hargadon, 10 Id. 106; Bowlsby v. Speer, 2 Vroom, 351; Pettigrew v. Evansville, 25 Wis. 223; Hoyt v. Hudson, 27 Id. 656; Swett v. Cutts, 50 N. H. 439.) It may be observed that in Pennsylvania, house lots in towns, and cities, seem to be regarded as not subject to the rule declared in the other cases in that State, in respect to surface drainage. (Bentz v.

Armstrong, 8 Watts & S. 40.) And in Livingston v. McDonald, 21 Iowa, 160, the court, in an opinion by Dillon, J., after stating the civil law doctrine, say, that it may be doubted whether it will be adopted by the common law courts of this country, so far as to preclude the lower owner from making in good faith improvements which would have the effect to prevent the water of the upper estate from flowing or passing away. Professor Washburn states, that the prevailing doctrine seems to be that if for the purposes of improving and cultivating his land, a landowner raises or fills it, so that the water which falls in rain or snow upon an adjacent owner's land, and which formerly flowed on to the first mentioned parcel, is prevented from so doing, to the injury of the adjacent parcel, the owner of the latter is without remedy, since the other party has done no more than he had a legal right to do. (Wash. on Easements [2d ed.], 431.)

Upon this state of the authorities, we are at liberty to adopt such rule on the subject as we may deem most consonant with the demands of justice, having in view on the one hand individual rights, and on the other the interests of society at large. Upon consideration of the question, we are of opinion that the rule stated by Denio, Ch. J., in Goodale v. Tuttle, is the one best adapted to our condition, and accords with public policy, while at the same time it does not deprive the owner of the upper tenement of any legal right of property. The maxim, Aqua currit et debet currere ut currere solebat, expresses the general law which governs the rights of owners of property on watercourses. The owners of land on a watercourse are not owners of the water which flows in it. But each owner is entitled by virtue of his ownership of the soil to the reasonable use of the water as it passes his premises, for domestic and other uses, not inconsistent with a like reasonable use of the stream by owners above and below him. Such use is incident to his right of property in the soil. But he cannot divert, or unreasonably obstruct, the passage of the water to the injury of other proprietors. These familiar principles are founded upon the most obvious dictates of natural justice and public policy. The exist ence of streams is a permanent provision of nature, open to observation by every purchaser of land through which they pass. The multiplied uses to which in civilized society the water of rivers and streams is applied, and the wide injury which may result from an unreasonable interference with the order of nature, forbid an exclusive appropriation by any individual of the water in a natural watercourse, or any unreasonable interruption in the flow. It is said, that the same principle of following the order of nature should be applied between coterminous proprietors, in determining the right of mere surface drainage. But it is to be observed, that the law has always recognized a wide distinction between the right of an owner to deal with surface water falling or collecting on his land, and his right in the water of a natural watercourse. In such water, before it leaves his land and becomes part of a definite water

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course, the owner of the land is deemed to have an absolute property, and he may appropriate it to his exclusive use, or get rid of it in any way he can, provided only that he does not cast it by drains, or ditches, upon the land of his neighbor; and he may do this, although by so doing he prevents the water reaching a natural watercourse, as it formerly did, thereby occasioning injury to mill-owners, or other proprietors on the stream. So also he may by digging on his own land intercept the percolating waters which supply his neighbor's spring. Such consequential injury gives no right of action. (Acton v. Blundell, 12 M. & W. 324; Rawstron v. Taylor, 11 Exch. 369; Phelps v. Nowlen, 72 N. Y. 39.) Now, in these cases there is an interference with natural laws. But those laws are to be construed in connection with social laws and the laws of property. The interference in these cases with natural laws is justified, because the general law of society is, that the owner of land has full dominion over what is above, upon, or below the surface, and the owner in doing the acts supposed, is exercising merely a legal right. The owner of wet and spongy land cannot, it is true, by drains or other artificial means, collect the surface water into channels and discharge it upon the land of his neighbor to his injury. This is alike the rule of the civil and common law. (Corp. Jur. Civ. 39, tit. 3, §§ 2, 3, 4, 5; Noonan v. City of Albany, 79 N. Y. 475; Miller v. Laubach, 47 Penn. St. 154.) But it does not follow, we think, that the owner of land, which is so situated that the surfacewaters from the lands above naturally descend upon and pass over it, may not in good faith, and for the purpose of building upon or improving his land, fill or grade it, although thereby the water is prevented from reaching it, and is retained upon the lands above. There is a manifest distinction between casting water upon another's land, and preventing the flow of surface water upon your own. Society has an interest in the cultivation and improvement of lands, and in the reclamation of waste lands. It is also for the public interest that improvements shall be made, and that towns and cities shall be built. To adopt the principle that the law of nature must be observed in respect to surface drainage, would, we think, place undue restriction upon industry, and enterprise, and the control by an owner of his property. Of course in some cases the opposite principle may cause injury to the upper proprietor. But the question should, we think, be determined largely upon considerations of public policy and general utility. Which rule will on the whole best subserve the public interests and is most reasonable in practice? For the reasons stated, we think the rule of the civil law should not be adopted in this State. The case before us is an illustration of the impolicy of following it. Several house lots (substantially village lots) are crossed by the depression. They must remain unimproved if the right claimed by the plaintiff exists. It is better, we think, to establish a rule which will permit the reclamation and improvement of low and waste lands, to one which will impose upon