been held that there is no "obligation towards a neighbor cast by law on the owner of a house, merely as such, to keep it repaired in a lasting and substantial manner; the only duty is to keep it in such a state that his neighbor may not be injured by its fall; the house may, therefore, be in a ruinous state, provided it be shored sufficiently, or the house may be demolished altogether." 1 Where, however, several houses belonging to the same owner are built together, so that each requires the support of the adjoining house, and the owner parts with one of these houses, the right to such support is not thereby lost.2 And the right to pull down, it need scarcely be repeated, does not protect the defendant, any more than in the analogous case of excavation just noticed, from the consequence of damages produced by his negligent exercise of this right.3 1 Judgm., Chauntler v. Robinson, 4 Exch. 170. As to the right of support for a sewer, see Metropolitan Board of Works v. Metropolitan R. C., L. R. 4 C. C. P. 192. 2 Richards v. Rose, 9 Exch. 218. See Partridge v. Gilbert, 15 New York, 601; Webster v. Stevens, 5 8 Massey v. Goyder, 4 C. & P. 161; Walters v. Pfeil, ut supra ; Trower v. Chadwick, ut supra ; Radcliff v. Brooklyn, 4 N. Y. 195. So in Roman law, supra, § 115. 781 CHAPTER IX. WATERCOURSES. Liability for negligent flooding, § 934. stream, § 935. Rule as to artificial streams, § 936. Liability for diversion of subterranean waters, § 939. Nuisances on navigable streams, supra, § 846. Unusual freshet or stress of weather a de- Sewerage, supra, § 262. fence, § 938. § 933. THE subject of easements and servitudes in reference to watercourses is too vast and complicated to be introduced in its elements into the present volume; and I feel less embarrassment at this omission from the fact that this whole department of law is thoroughly and ably discussed in Professor Washburn's work on Easements and Servitudes, the third edition of which introduces the authorities as late as 1873. My object in the present chapter is to touch the subject only as far as it bears upon the Law of Negligence. § 934. Liability for negligent flooding.· -He who builds a dam upon his own premises, and thus holds back and accumulates the water for his benefit, or who brings water upon his premises into a reservoir, in case the dam or the banks of the reservoir give way and the lands of a neighbor are thus flooded, is not liable for the damage without proof of some fault or negligence on his part.1 Hence where a railway company so constructed an embankment as to serve the purpose of a dam to create a reservoir for the accommodation of the mill-owners below, whereby the company ob tained some indirect advantage; it was held that the company was 1 Earl, C., in Losee v. Buchanan, 51 N. Y. 476, citing Angell on Watercourses, § 336; Taphan v. Curtis, 5 Vt. 371; Todd v. Cochell, 17 Cal. 97; Everett v. Hydraulic, &c. Co. 23 Ibid. 225; Shrewsbury v. Smith, 12 Cush. 177; Livingston v. Adams, 8 Cowen, 175; Bailey v. Mayor, &c. of New York, 3 Hill, 531; S. C. 2 Denio, 433; Pixley v. Clark, 35 N. Y. 520, 524; Sheldon v. Sherman, 42 Ibid. 484. See supra, § 846. Suppose A. has a drain through the lands of B. and C., and C. stops up the inlet into his land from B.'s, and A. nevertheless, knowing this, pours water in the drain and damages B., A. is liable to B. Collins v. Middle Level Commissioners, L. R. 4 C. P. 279 ; Judgm., Harrison v. Great Northern R. C. 3 H. & C. 238. See Ogburn v. Connor, 46 Cal. 346. liable to proprietors on a lower grade of land for damages arising from a flood produced by the defective construction of the land.1 So a municipal corporation is liable for negligence in defective sluices, culverts, drains, sewers, and dams.2 So where, by a drainage act, the commissioners were to construct a cut, with proper walls, gates, and sluices, to keep out the waters of a tidal river, and also a culvert under the cut to carry off the drainage from the lands on the east to the west of the cut, and to keep the same at all times open; but in consequence of the negligent construction of the gates and sluices, the waters of the river flowed into the cut, and, bursting its western bank, flooded the adjoining lands; upon which the plaintiff and other owners of lands on the east side of the cut closed the lower end of the culvert, which prevented the waters overflowing their lands to any considerable extent; but the occupiers of the lands on the west side, believing that the stoppage of the culvert would be injurious to their lands, reopened it, and so let the waters through on to the plaintiff's land to a much greater extent: it was held that the commissioners were responsible for the entire damage thus caused to the plaintiff's land. A similar position is taken in the Roman law. "Si fistulae, per quas aquam ducas, aedibus meis applicatae damnum mihi dent, in factum actio mihi competit." 4 This, however, is subject to the qualification that "fistulae" were not constructed with the "diligentia" of a "bonus et diligens paterfamilias." If they were so constructed, there was no liability. The same view obtains in our own jurisprudence. "Where one builds a mill-dam upon a proper model, and the work is well and substantially done, he is not liable to an action though it break away, in consequence of which his neighbor's dam and mill below are destroyed. Negligence should be shown in order to make him liable."5 It is true that in a famous English case it was held, that, as between adjoining owners, one who diverts water from its natural flow, and accumulates it on his own land for his own purposes, is bound at all hazards to prevent its escape; and if it does escape, negligence or no negligence, he is re 1 Jones v. R. R. 27 Vt. 399. 2 Supra, § 262, 846; Lacour v. Mayor, 3 Duer, 406; Smith v. Milwaukee, 18 Wisc. 63; Kensington v. Wood, 10 Penn. St. 93; Merrifield v. Worcester, 110 Mass. 216. 8 Collins v. Commis. 4 C. P. 279. 4 L. 18. D. de serv. praed. urb. 8. 2. Supra, § 113. 5 Opinion in Livingston v. Adams, ut supra, as adopted by Earl, C., in Losee v. Buchanan, ut supra. sponsible for the damage to his neighbor. But this strict liability, so far as it makes the defendant liable irrespective of the question of negligence, is not, as has just been seen, accepted in this country, and has been much qualified in England by a case decided in 1874,2 where it was held that when through exceptional rains the defendant's mines were flooded, and the water passed from thence to the plaintiff's, the defendant was not liable if he pursued, in his dealing with the water, the ordinary, reasonable, and proper mode of working the mine. Nor does this unqualified liability apply, even in England, to the occupiers of distinct portions of the same house, in reference to the waterpipes or reservoirs. If there be no negligence, one tenant in whose apartment a pipe bursts, or gutter overflows, is not responsible to another tenant, for damages produced by such bursting or overflowing. Nor can it be extended to cases where the volume of descending water is increased by the necessities of nonnegligent irrigation.* § 935. Owner of land through which surface stream passes diverting or diminishing its volume. The owner of land through which a stream passes has a right to the advantage of the stream flowing in its natural course over his land, and to use the same as he pleases for any purposes of his own, provided that they be not inconsistent with a similar right in the owner of the land above or below; the law, however, being that the upper owner cannot diminish the quantity or injure the quality of the water, which would otherwise naturally descend." Where, therefore, 1 Rylands v. Fletcher, Law Rep. 3 H. L. 330; supra, § 787. See also Stout v. Adams, 2 Scam. 67; Tillotson v. Smith, 32 N. H. 90; Pixley v. Clark, 32 Barb. 268; S. C. 35 N. Y. 520, 530; Washburn on Easements, 382. 2 Smith v. Fletcher, L. R. 9 Exch. 64, reversing a decision of the court of exchequer. Supra, § 787. 8 Ross v. Fedden, Law Rep. 7 Q. B. 661; Carstairs v. Taylor, Law Rep. 6 Exch. 217. See also Ortmayer v. Johnson, 45 Ill. 469. 4 Madras R. R. v. Zemindar, 30 L. T. N. S. 771; Alb. L. J., Sept. 5, 1874, 150; supra, § 787; Williams v. Gale, 3 Har. & J. 231; Kauffman v. Greisemer, 26 Penn. State, 407. 5 Mason v. Hill, 5 B. & Ald. 1; Wright v. Howard, 1 Sim. & Stu. 190 ; cited Judgm. 12 M. & W. 349 ; Judgm., Embrey v. Owen, 6 Exch. 368, 373; Chasemore v. Richards, 7 H. L. Cas. 349; Rawstron v. Taylor, 11 Exch. 369; Broadbent v. Ramsbotham, Ibid. 602. See also Whaley v. Laing, 3 H. & N. 675, 901; Hipkins v. Birmingham & Staffordshire Gas Light Co. 6 H. & N. 250; S. C. 5 Ibid. 74; Snow v. Parsons, 28 Vt. 459; Judd v. Wells, 12 Metc. 504; Newhall v. Ireson, 8 Cush. it is held in England, the owner of land applies the stream running through it to the use of a mill newly erected, or to any other purpose, he may, if the stream is diverted or obstructed by the proprietor of land above, recover against such proprietor for the consequential injury to the mill; and the same principle seems to apply where the obstruction or diversion has taken place prior to the erection of the mill, unless, indeed, the owner of land higher up the stream has acquired a right to any particular mode of using the water by prescription, that is, by user continued until the presumption of a grant has arisen.1 But priority of occupation gives no priority of right to the use of the stream, beyond the actual extent of such occupancy.2 § 936. Artificial streams, however, may be absorbed by owner. — On this subject we have the following authoritative remarks from an English judgment: "The flow of a natural stream creates natural rights and liabilities between all the riparian proprietors along the whole of its course. Subject to reasonable use by himself, each proprietor is bound to allow the water to flow on without altering the quantity or quality. These natural rights and liabilities may be altered by grant or by user of an easement to alter the stream, as by diverting, or fouling, or penning back, or the like. If the stream flows at its source by the operation of nature, that is, if it is a natural stream, the rights and liabilities of the party owning the land at its source are the same as those of the proprietors in the course below. If the stream flows at its source by the operation of man, that is, if it is an artificial stream, the owner of the land at its source or the commencement of the flow is not subject to any rights or liabilities towards any other person, in respect of the water of that stream. The owner of such land may make himself liable to duties in respect of such water by grant or contract; but the party claiming a right to compel performance of those duties must give evidence of such 595; Sackrider v. Beers, 19 Johns. 241; Van Hoesen v. Coventry, 10 Barb. 518; Thomas v. Brackney, 17 Barb. 654; Hartsall v. Sill, 12 Penn. St. 248; Wash. on Easements, 348. See Phil. v. Gilmanton, 71 Pa. St. 140. Supra, § 127, 254, where it was held the city of Philadelphia was liable to persons navigating the river |