subject are like those of Missouri, giving the mill-owner a right, upon a writ of ad quod damnum, to have land condemned in his favor, upon which to erect a dam, or to assess the damages to be occasioned to the lands of others by erecting a dam upon his own land. And those of Florida are so nearly identical with the statutes of Virginia that it is unnecessary to repeat them.2 45. These proceedings under a writ of ad quod damnum, in which respect all the States adopting the Virginia system have the same general form, being in derogation of the common-law rights of the parties injured by the loss of, or damage to, his land, must be strictly pursued, or the injured party is remitted to his remedy at common law.3 And though, where such proceedings have been regularly conducted, a judgment in the writ of ad quod damnum would be conclusive upon the subject of the damages therein provided for, it has been held, in Indiana, that such assessment will not affect the remedy of an injured party for an injury which was [* 352] not foreseen or estimated by the jury.4 And so important is it that one should have obtained authority from the court for erecting a mill and dam, in order to avail himself of the protection of the law in respect to the same, that where one had, without preliminary proceedings, begun to erect a dam and mill, and another obtained leave of court upon a writ of ad quod damnum, and proceeded to erect a dam and mill below the first, it was held that, though subsequent in time, he was thereby prior in right, and might go on and flow out the works of the upper owner.5 But in Kentucky, where a mill had stood thirty-three years, the unobstructed use of it during that time was held to raise a legal presumption that it was, originally, legally established.6 46. To complete what is intended to be said of these local statutes, it may be repeated, that the statutes of Alabama, which were substantially like those of Virginia, were declared unconstitutional 1 1 Ind. Rev. Stat. 1852, c. 48; Ill. Stat., ed. 1858, p. 768. 2 Thomp. Dig. Flor. Laws, p. 401. 3 Hendricks v. Johnson, 6 Port. 472; Shackleford v. Coffey, 4 J. J. Marsh. 40; Wolf v. Coffey, ibid. 41. See Garrett v. Bailey, 4 Harringt. 197. Kepley v. Taylor, 1 Blackf. 492; Smith v. Olmstead, 5 Blackf. 37; Bell v. Elliott, 5 Blackf. 113. • Hendricks v. Johnson, supra. M'Dougle v. Clark, 7 B. Monr. 448. by the courts of that State, so far as they relate to taking the lands of one man for the use of another.1 And a statute in Maryland, which had existed for many years, authorizing any person desirous of establishing a forging mill, to apply for a writ of ad quod damnum, and under it to have an hundred acres of land condemned to him for that purpose, was repealed in 1822.2 [* 353] *SECTION VI. OF RIGHTS IN RAIN AND SURFACE WATER. 1. Rain and surface water flowing from a higher to a lower field. 2. Case of Martin v. Riddle. As to the law in such case. 3, 3a, 3b, 3c. Easement and servitude of water between upper and lower fields. 4. Case of Kauffman v. Griesemer, illustrating this doctrine. 5. Law of Louisiana on the same subject. 5a. Same subject considered in Iowa and Illinois. 6. How far the rule in such cases applies in cities. 7. How far upper owner may deprive lower of surface water. 8. Case of Broadbent v. Ramsbotham. On same subject. 9. Case of Rawstron v. Taylor. Right to drain upper field. 10. Rule as to right to divert, if spring become a stream. 11. Case of Luther v. Winnisimmet Company. As to rights in surface water. 1. BEFORE proceeding to consider the law as to water percolating through the earth, beneath its surface, it is necessary to refer to a few principles which seem now to be pretty well settled as to the respective rights of adjacent land-owners, in respect to waters which fall in rain, or are in any way found upon the surface, but not embraced under the head of streams or watercourses, nor constituting permanent bodies of water, like ponds, lakes, and the like. It may be stated as a general principle, that, by the civil law, where the situation of two adjoining fields is such that the water falling or collected by melting snows, and the like, upon one, naturally descends upon the other, it must be suffered by the lower one to be discharged upon his land if desired by the owner of the upper field. But the latter cannot, by artificial trenches or otherwise, cause the natural mode of its being discharged to be changed to 1 Sadler v. Langham, 34 Ala. 311. 2 Binney's Case, 2 Bland, Ch. 99, 116. the injury of the lower field, as by conducting it by new channels in unusual quantities on to particular parts of the lower field.1 Thus where one had a natural pond or reservoir upon his land, and cut a drain from it through his land to that of another landowner, whereby the water flowed upon the land of the latter, he was held liable for the damage thereby occasioned to the same.2 So where one had a low, swaily place in his land, in which the water collected and, in high states of it, overflowed on to the land of another, and he dug a trench in his own land so as to turn the water upon this other land at other times than when it was high, although the court were inclined to hold the doctrine of the civil law of a servitude due from a lower to receive water from a higher parcel, they held the defendant, in this case, liable for thus throwing the water upon the plaintiff's land, confining such servitude to such water only as naturally flowed upon it, without the industry of man, and they deny that a man having a sink or basin upon his land can lawfully discharge the water of the same upon his neighbor's land by artificial means.3 This question has arisen in several different forms, and *the law upon the subject can be best illustrated by [* 354] referring to some of the decided cases. 2. In Martin v. Riddle, there were adjacent parcels of land belonging to the plaintiff and defendant, that of the defendant being upon a lower level than that of the plaintiff. The water that fell upon the plaintiff's land in rain, as well as that arising from certain springs in the same, found their way along a natural channel from the plaintiff's on to the defendant's land. A proprietor upon the slope of the acclivity above the plaintiff's land opened certain other springs in his land by excavating the earth, 1 Ante, chap. 3, sect. 1, pl. 7; Pardessus, Traité des Servitudes, 130; 3 Toullier, Droit Civil Français, 374, ed. 1824. There is a statute in Massachusetts which authorizes the owner of a swamp or meadow, under certain limitations, to construct a drain or ditch from his own across the land of an adjacent owner for the purpose of draining the same. But this extends only to the draining one's land through another's to a pond or stream capable of receiving the water, without causing injury to his neighbor's land. It does not authorize his conducting the water from his own land on to that of his neighbor to its injury. He would be liable to an action for so doing. Gen. Stat. c. 148; Sherman v. Tobey, 3 Allen, 7. See Curtis v. Eastern R.R., 98 Mass. 431. Pettigrew v. Evansville, 25 Wisc. 223. 3 Butler v. Peck, 16 Ohio St. 334. the water from which found its way into the plaintiff's land, and thence through this natural channel to the defendant's land, increasing the quantity usually flowing therein, and injuring the defendant's land. In order to prevent this, the defendant constructed an embankment across this natural channel, and thereby prevented the water from flowing from the plaintiff's land, and for this he brought his action. It was held, that, while the owners. of land are entitled to the benefit of waters naturally running to the same, they are bound to bear the inconvenience thereof, if any, and that living springs are to be suffered to flow in their natural channel, and may not be stopped by one proprietor to the injury of another. In general, the same rule applies to rain-water as to living springs, in respect to its draining from lands upon which it falls, a lower field being subject to the flow of such water from the higher one. Nor may the owner of the lower one construct embankments which will prevent this. On the other hand, the owner of the upper field may not construct drains or excavations so as to form new channels on to the lower field, nor can he collect the water of several channels and discharge it on to the lower field so as to increase the wash upon the same. He may, however, make whatever drains in his own land are required by good husbandry, either open or covered, and may discharge these into the nat[* 355] ural channel or channels, even though by so doing he * increases the quantity flowing therein. And if there is any difficulty in ascertaining what the natural channel is, that will be taken to be such in which the water has been accustomed to flow for the period requisite to acquire a prescriptive right. But if the owner of the upper field throw an unnatural quantity of water upon the lower one, he may not stop it altogether, if, in so doing, he throws back the water upon the land of an intermediate proprietor, as, in the present case, the increase was occasioned by the act of a more remote proprietor. And the court held the defendant in the action liable for creating the obstruction complained of.1 3. The owner of the upper field, in such a case, has a natural easement, as it is called, to have the water that falls upon his own land flow off the same upon the field below, which is charged with a corresponding servitude, in the nature of dominant and servient 1 Martin v. Riddle, 26 Penn. St. 415, in note; 3 Toullier, Droit Civil Français, 356; Miller v. Laubach, 47 Penn. 155; Hayes v. Hickleman, 68 Penn. 324. tenements. It may be difficult to reconcile what is here said with some of the positions to be found in an earlier part of this work (p. *211 et seq.), especially the language of the court of Massachusetts, that "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." 2 But the doctrine as above stated is in accordance with recent opinions of some of the American Courts. Thus in Beard v. Murphy, the defendant stopped the surface flow from the plaintiff's land on to his by a barrier of boards and clay upon the defendant's land. The court say "the plaintiff claimed, that, if the surface water naturally falling on his land would run off upon the defendant's land, the defendant had no right to put up any obstruction to prevent its continuing to do so." "This the court granted and charged to be law." But inasmuch as what the defendant did was to prevent filthy water flowing from plaintiff's house into his well, it was held that he was justified in stopping the same, although he, at the same time, stopped some of the natural flow of proper surface water. On the other hand, the owner of an upper parcel cannot drain the water that stands thereon by artificial channels on to a lower one belonging to another without his consent. This was the point in Miller v. Laubach. The owner may drain his land by ditches within his land, for agricultural purposes, but one owner Laumier v. Francis, 23 Misso. 181; Bellows v. Sackett, 15 Barb. 96, 102; Code Nap. Art. 640; Ersk. Inst. 352, fol. ed.; Orleans Navigation Co. v. Mayor, &c., 2 Mart. 214, 232; Adams v. Harrison, 4 La. An. 165; Lattimore v. Davis, 14 La. 161; Hays v. Hays, 19 La. 351; Kauffman v. Griesemer, 26 Penn. St. 407, 413; ante, *15, Pardessus, Servitudes, p. 130, § 92. The same rule applies to all matters which, from the relative situation of two estates, are naturally cast from the one upon the other, such as rocks, slides of earth, and the like, falling from a higher upon a lower parcel. The lower tenement in such case is obliged to receive what is thus cast upon it, though the owner thereof may protect it, if possible, by works of art, to guard against injuries thereby occasioned. 3 Toullier, Droit Civil Français, 356. The owner of the upper tenement may by prescription acquire a right to roll the stones from his land upon that of his neighbor. But, without gaining such a right, he may not cause those upon his land to roll on to that of his neighbor. 2 Fournel, Traité du Voisinage, 177. 2 Gannon v. Hargadon, 10 Allen, 110. 3 Beard v. Murphy, 37 Verm. 104. See also Miller v. Laubach, 47 Penn. 155. |