The Oneida Bank v. The Ontario Bank. to be, upon a statement of the controversy to be made for their consideration. If, upon that statement, the plaintiff was entitled to a judgment on the verdict, it could not rightfully be refused, on the ground that the complaint in the case did not allege all the facts necessary to such a judgment; and there is nothing to show that the decision was given upon any such ground. It may well be true, as we were told on the argument, that the plaintiff's counsel, both at the trial and in the Supreme Court, failed to urge the particular reasons which, we think, entitled the plaintiff to recover. There is nothing in the record to show that such was the fact, and there is no law or rule of practice which required the points on either side to be stated. Nor is it material whether the case was well presented to the court below, in the arguments addressed to it. It was the duty of the judges to ascertain and declare the whole law upon the undisputed facts spread before them; and it is our duty now to give such a judgment as they ought to have given. The amount due to the plaintiff, according to the principles of this opinion, was correctly ascertained by the verdict of the jury; and we think that, upon the facts proved and contained in the statement returned upon this appeal, judgment should have been given accordingly. The judgment appealed from must, therefore, be reversed, and final judgment for the plaintiff, according to the verdict, must be rendered. DENIO, J., dissented; "all the other judges concurring, Judgment accordingly. Lampman v. Milks. 21 505 121 391 LAMPMAN V. MILKS. Where the owner of land has, by any artificial arrangement, effected an Such benefits, not naturally attached to the premises purchased, but previ- APPEAL from the Supreme Court. Action for changing the course of a stream, and flooding the plaintiff's land. Upon the trial, at the Otsego Circuit, before Mr. Justice CRIPPEN, a jury having been waived, these facts appeared: On the 27th March, 1850, Ovid Chesebro owned forty acres of land on Elk creek, through which there was a small brook running. In its natu ral course it would have run over half an acre of low ground, which Chesebro on that day conveyed to the plaintiff for a building lot, and upon which the plaintiff immediately thereafter erected a house and barn. Some ten years previously, the owner of the forty acres had diverted the stream through an artificial channel, carrying it into Elk creek in such a manner as not to flow over the plaintiff's land. On the 1st of April, 1850, Chesebro conveyed the residue of the forty acres to the grantor of the defendant. In 1854 the defendant dammed up SMITH.-VOL. VII. 64 21 505 132 435 21 505 134 387 21 505 151 398 21 505 154 298 21 505 157 608 21 505 d164 433 21 505 f168 1532 21 505 169 1230 Lampman. Milks. the entrance to the artificial channel, so as to cause the stream to run in its original bed and to overflow the plaintiff's yard, which was the injury complained of. The judge ordered judgment for the defendant, which having been affirmed at general term in the sixth district, the plaintiff appealed to this court. The cause was submitted on printed arguments. E. E. Ferry, for the appellant. B. J. Scofield, for the respondent. SELDEN, J. Although this is an action of a very trivial nature, in respect to the amount which it involves, it nevertheless embraces principles of very considerable importance, and should, therefore, be carefully considered. It was clearly established upon the trial that, at the time when the plaintiff purchased and took a conveyance from Chesebro, the stream in question, instead of running in its original channel, through the entire length and across the south line of the plaintiff's lot, had been turned through an artificial channel across the north line on to the other portions of the forty acres, and thence into Elk creek; thus leaving the whole of the southern portion of the plaintiff's lot, upon which he subsequently built his house and barn, dry and free from the incumbrance of the stream, which had originally spread over a considerable portion of the lot. It did not distinctly appear how long the stream had run in this artificial channel prior to the conveyance of the lot by Chesebro, nor do I deem this of any importance. It was several months, at least. The question is, whether, after conveying this lot and its appurtenances to the plaintiff, with the stream then running in the artificial channel on to adjoining premises of his own, either he or his grantees would have a right afterwards to obstruct this channel, and turn the water back through its original course across the entire lot. The owner of real estate has, during his ownership, entire dominion and control over its various natural qualities, and may dispose of and arrange them at will. He may alter the Lampman v. Milks. natural distribution of those qualities, so as essentially to change the relative value of the different parts; and may, in a great variety of ways, make one portion of the premises subservient to another. The precise question in this case is, whether an owner, who, by such an artificial arrangement of the material properties of his estate, has added to the advantages and enhanced the value of one portion, can, after selling that por tion with those advantages openly and visibly attached, voluntarily break up the arrangement, and thus destroy or materially diminish the value of the portion sold. The rule of the common law on this subject is well settled. The principle is, that where the owner of two tenements sells one of them, or the owner of an entire estate sells a portion, the purchaser takes the tenement, or portion sold, with all the benefits and burdens which appear, at the time of the sale, to belong to it, as between it and the property which the vendor retains. This is one of the recognized modes by which an easement or servitude is created. No easement exists so long as there is a unity of ownership, because the owner of the whole may, at any time, rearrange the qualities of the several parts. But the moment a severance occurs, by the sale of a part, the right of the owner to redistribute the properties of the respective portions ceases; and easements or servitudes are created, corresponding to the benefits and burdens mutually existing at the time of the sale. This is not a rule for the benefit of purchasers only, but is entirely reciprocal. Hence, if, instead of a benefit conferred, a burden has been imposed upon the portion sold, the purchaser, provided the marks of this burden are open and visible, takes the property with the servitude upon it. The parties are presumed to contract in reference to the condition of the property at the time of thể sale, and neither has a right, by altering arrangements then openly existing, to change materially the relative value of the respective parts. These principles are so obviously just, that we might be warranted in applying them to the present case for that reason alone. But they are also sustained by ample authority. The Lampman v. Mliks. oldest case on the subject appears to be that of Coppy, 11 Henry VII, 25, cited from the Year Books by Gale and Whately, in their work on Easements, page 41. That was an action on the case for stopping a gutter running from the building of the plaintiff over the adjoining building of the defendant. The plea was, that, within the time of memory, both buildings had belonged to the same individual, who had sold one of them to the plaintiff and the other to the defendant; and that the easement, if it ever existed, was extinguished by this unity of ownership. But the court held this to be no defence. It was, however, conceded that if the owner of both tenements, before selling either, had destroyed the gutter, and then sold, the gutter could not have been restored. This case was identical in principle with the present, and fully sustains what has been here said. It shows that, if the owner of an entire property wishes to put an end to a burden, which has been imposed upon one portion for the benefit of another, he must do so before he sells the portion benefited. But the leading case, and the one which has always been regarded as settling the law upon this subject, is, Nicholas v. Chamberlain (Cro. Jac., 121), in which, to use the language of Croke, "It was held by all the court, upon demurrer, that, if one erect a house, and build a conduit thereto, in another part of his land, and convey water by pipes to the house, and afterwards sell the house with the appurtenances, excepting the land, or sell the land to another, reserving to himself the house, the conduit and pipes pass with the house, because it is necessary and quasi appendant thereto; and he shall have liberty by law to dig in the land for amending the pipes, or making them new, as the case may require." The authority of this case has never been shaken, but, on the contrary, it has been referred to with approbation, in all the subsequent cases in which this question has been involved. The same doctrine was laid down in the case of Robbins v. Barnes (Hob., 131). It was there held, that when one of two adjoining houses was originally built in such a manner that one overhung a portion of the other, although this overhang |