have been before, but their rights are not altered. It was said that innumerable actions might be brought if the law were as the plaintiffs contend. But there are two answers to this, one practical, viz., that they would not be brought, the other that the same might happen now if the smallest portion of the bank was granted with the right. A similar answer may be given to the supposed difficulty of the riparian proprietors above desiring to buy up rights below. The power to make such a grant then is for the benefit of the grantor, and grantee, and the public; and the only prejudice by it to the riparian or wrongdoer above is the liability to greater damages and to an action and injunction at the suit of persons additional to the riparians below. But this consideration could not preclude a covenant by the grantor that the grantee might apply in his name for an injunction or sue in his name, nor would it preclude a grant of the part of the bank where the water was taken, in which case it is clear the grantee might maintain an action or obtain an injunction. And this suggests to me the remark that what may be done indirectly may be directly. Further, it does seem strange that if a man has an estate on the bank of a stream extending a mile from it, he may build houses on the land, conduct water from the stream to them, and maintain an action and recover substantial damages for the injury to each house: that his tenants of each, if he let them, might do the same even though he demised them for 1000 years at a peppercorn rent, but that if he grants away the house in fee with the right of water, such grantee can maintain no action. What is to happen if he does so and repurchases? What would be the case if a riparian proprietor added to his estate another, to which water had been so conducted? Suppose a riparian proprietor on both sides for a great length wholly alters the course of the stream, could he not effectually complain of a fouling of the water in the new course? Suppose besides the new course he allowed the old one to continue, the stream running in both, could he not then maintain actions for the damage done to either? If he could, could not his grantee of lands on the new stream, and if such grantee could, why cannot the plaintiffs?

If the defendants' argument is well founded, it will follow that where the owner of land on a stream has built a mill alongside the stream with a cut or lead to it, and sells the mill, but not the natural watercourse, the owner of the mill can maintain no action against a riparian owner above who abstracts the water. I cannot think this is so. Further, suppose the person fouling the water was not a riparian proprietor but a mere wrongdoer, why should not an action lie against him? I can see no reason, nor can I see that his being such proprietor makes any difference. Upon these various considerations it seems to me this action is maintainable. I think it may fairly be asked to what extent I would carry the principle upon which I decide this? My answer is, to the extent to which the analogous case extends of a grantee of a right of way. Where a grantee of a right of way could maintain an action for disturbance of his way, so do I think the grantee of a right of water

might. This case of the right of way, and cases of right of common,
seem to me analogous to this case and authorities for my opinion. I
am of course aware of the case of Keppell v. Bailey, 2 Myl. & K. 516,
and agree that new rights of property cannot be created, but I think that
rule does not interfere with the present case. There, an owner of land
was resisting a burden put on it by a former owner, and it was held
that burden could not be attached to the land in the hands of the as-
signee. Here, no doubt, it can be, that is to say, on the lands of the
riparian proprietors, the Marsdens. The question is not with them,
but with one who would be a wrongdoer if he had no riparian estate or
occupation, and is not the less so because he has. Nor is Hill v. Tup-
per, 2 H. & C. 121, any authority against the maintenance of this ac-
tion. That case decided that in respect of what was no estate, and
which gave no possession, but merely a right of action, against a cove-
nantor, that right could not be enforced against a third party. On the
other hand, Whaley v. Laing, 3 H. & N. 675, 901, seems a strong
authority in favor of the plaintiff; for all the judges seem to have con-
sidered that had the water been taken as of right, the action would have
been maintainable. I have only to add that, to my mind, this is not a
question of easement or of dominant and servient tenement. The plain-
tiffs rely on the possession and enjoyment as of right, and charge the
defendant as a wrongdoer, not the less because he is a riparian owner.
I think the plaintiffs are entitled to judgment.

Judgment for the defendants.

Collier (Coxon and McIntyre with him), for the plaintiffs.

Sir Hugh Cairns (Grove, Welsby, Horatio Lloyd and Potter with him), for the defendants.1

bf files of dist & refuse on his own land, and as a remet tho water oozed & percalated through the wall of the home hoing damage. Def se murred claining there no right of action.

so asring their lander HURDMAN v. NORTH EASTERN RAILWAY COMPANY. for

I interferes with the

enjoyment of their

APPEAL from the judgment of Manisty, J., in favor of the plaintiff

on demurrer to a statement of claim.

Claim: At the time of the damage hereafter mentioned the plaintiff was, and is still, possessed of a house, No. 16, Lodge Terrace, Sunderland.

2. The defendants then were, and still are, possessed of a certain close of land adjoining the house of the plaintiff.

3. The defendants placed and deposited in and upon the close of the defendants, and upon and against a wall of the defendants which adjoins and abuts against the house of the plaintiff, large quantities of

1 Approved in Ormerod v. Todmorden Mill Co., 11 Q. B. D. 155 ; but see Nuttall v. Bracewell, L. R. 2 Ex. 1; Bristol Hydraulic Co. v. Boyer, 67 Ind. 236.

soil, clay, limestone, and other refuse, close to and adjoining the house of the plaintiff, and thereby raised the surface of the defendants' land above the level of the land upon which the plaintiff's house was built.

4. The rain which fell upon the soil, clay, limestone, and other refuse so placed as aforesaid oozed and percolated through the wall of the defendants into the house of the plaintiff, and the plaintiff's house thereby became wet, damp, unwholesome, and unhealthy, and less commodious for habitation.

5. By reason of the acts of the defendants the walls of the house of the plaintiff became and were very much injured, and the paper upon the walls has been destroyed.

6. In the alternative the plaintiff alleges that the defendants negligently and improperly placed and deposited the soil, clay, limestone, and refuse upon the defendants' land, and that the rain water falling thereon oozed and percolated through and into the plaintiff's house, whereby the plaintiff's house was damaged as before mentioned.

7. In the alternative the plaintiff alleges that the defendants were guilty of negligence in this, that the wall of the defendants against which the defendants so placed the soil, clay, limestone, and refuse was not sufficiently and properly constructed and built so as to prevent the water falling upon the soil, clay, limestone, and refuse from oozing and percolating through the wall and into the plaintiff's house, and that the defendants were guilty of negligence in placing the soil, clay, limestone, and refuse against the wall being so insufficient to prevent the water falling upon the soil, clay, limestone, and refuse from oozing and percolating through and into the plaintiff's house, whereby the plaintiff's house was damaged.

Demurrer to the claim, on the ground that the acts, matters, and things alleged to have been done by the defendants do not give rise to any right of action on the part of the plaintiff.

Herschell, Q. C., and G. Bruce, for the defendants in support of the demurrer.

Waddy, Q. C., and John Edge, for the plaintiff, contra.

The judgment of the court (BRAMWELL, BRETT, and COTTON, L. JJ.) was delivered by

COTTON, L. J. In this case the plaintiff has brought an action for injury alleged to have been caused to his house, which abuts on a wall of the defendants, by certain acts done by the defendants on their own land. The question is raised on demurrer to the statement of claim, and the question therefore is whether that alleges a good cause of action. [The Lord Justice read the statement of claim, except paragraph 7.] It is unnecessary to read the seventh paragraph, because it is based on a supposed obligation of the railway company to make their wall water-tight, but in our opinion there is no such obligation, and if the statements contained in the preceding paragraphs do not show a cause of action, the statements of the seventh paragraph do not enable the plaintiff to sustain this action.

For the purposes of our decision, we must assume that the plaintiff has sustained substantial damage, and we must construe the statement as alleging that the surface of the defendants' land has been raised by earth and rubbish placed thereon, and that the consequence of this is that rain-water falling on the defendants' land has made its way through the defendants' wall into the house of the plaintiff, and has caused the injury complained of. The question is, Are the defendants, admitting this statement to be true, liable to the plaintiff? and we are of opinion that they are. The heap or mound on the defendants' land must, in our opinion, be considered as an artificial work. Every occupier of land is entitled to the reasonable enjoyment thereof. This is a natural right of property, and it is well established that an occupier of land may protect himself by action against any one who allows any filth or any other noxious thing produced by him on his own land to interfere with this enjoyment. We are further of opinion that, subject to a qualification to be hereafter mentioned, if any one by artificial erection on his own land causes water, even though arising from natural rain-fall 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, and this view agrees with the opinion expressed by the Master of the Rolls in the case of Broder v. Saillard, 2 Ch. D. at p. 700. I have limited this statement of liability to liability for allowing things in themselves offensive to pass into a neighbor's property, and for causing by artificial means things in themselves inoffensive to pass into a neighbor's property to the prejudice of his enjoyment thereof, because there are many things which when done on a man's own land (as building so as to interfere with the prospect, or so as to obstruct lights not ancient) are not actionable, even though they interfere with a neighbor's enjoy ment of his property. But it is urged that this is at variance with the decision that if, in consequence of a mine-owner on the rise working out his minerals, water comes by natural gravitation into the mines of the owner on the deep, the latter mine-owner cannot maintain any action for the loss which he thereby sustained. But excavating and raising the minerals is considered the natural use of mineral land, and these decisions are referable to this principle, that the owner of land holds his right to the enjoyment thereof, subject to such annoyance as is the consequence of what is called the natural user by his neighbor of his land, and that when an interference with this enjoyment by something in the nature of nuisance (as distinguished from an interruption or disturbance of an easement or right of property in ancient lights, or the support for the surface to which every owner of property is entitled), is the cause of complaint, no action can be maintained if this is the result of the natural user by a neighbor of his land. That this is the principle of these cases appears from the case of Wilson v. Waddell, 2 Ap. Cas. 95, and from what is said by the Lord Chancellor in Fletcher v. Rylands, Law Rep. 3 H. L. C. 330. Moreover, the cases referred to have laid down that a mine-owner is exempt from liability,

for water which in consequence of his works flows by gravitation into
an adjoining mine, only if his works are carried on with skill and in the
usual manner; and in the present case it is stated that the defendants
have conducted this operation negligently and improperly. The de-
cisions, therefore, as regards the rights of adjoining mine-owners, do
not enable the defendants to discharge themselves from liability.

It was also argued that a landowner, who by operations on his own
land drains the water percolating underground in the property of his
neighbor, is not liable to an action by the man whose land is thus de-
prived of its natural moisture, and this it was argued was inconsistent
with a judgment for the plaintiff on a statement alleging as a cause of
action an alteration in the percolation of water. It is sufficient to say
that no one can maintain an action unless there is some injury to some-
thing to which the law recognizes his title, and the law does not recog-
nize any title in a landowner to water percolating through his property
underground and in no definite channel.

We are of opinion that the maxim Sic utere tuo ut alienum non
ladas applies to and governs the present case, and that as the plain-
tiff by his statement of claim alleges that the defendants have by arti-
ficial erections on their land caused water to flow into the plaintiff's
land, in a manner in which it would not but for such erection have
done, the defendants are answerable for the injury caused thereby to
the plaintiff.
Judgment affirmed.

a mer seas above Pl mile, hindered the flor poster and for 6 days cut 7 th supply entire so and

PITTS. LANCASTER MILLS.

SUPREME JUDICIAL COURT OF MASSACHUSETTS.

[Reported,13 Met. 156.]

far in mass but contra to weighing in thanty = n 1847. au

THIS was an action of trespass upon the case; and the declaration alleged that Samuel Carter was seised and possessed of a close, water mill, ancient dam, and the water privileges thereto appertaining, situate on the north branch of Nashua River, in Lancaster, and the right of having the whole water of said stream flow, without obstruction, for the benefit of said mill, and of having the uninterrupted use and occupation of said mill and privileges; and that said Carter, being so seised and possessed, leased the said premises, for a term of years, to Hiram Pitts, who underlet the same to the plaintiffs; that the defendants, a corporation established by St. 1844, c. 20, in the months of June and July, 1845, wrongfully built and raised, above its usual height, their dam, situate across said stream, above the mill, dam and privilege occupied by the plaintiffs, and thereby hindered the water from flowing in its usual course, and thereby, for the space of two days during the said month of June, and four days during said month of July, wholly cut off the water from the plaintiffs' mill, &c.

The case was submitted to the court upon the following agreed state

to