in places which lie in the path of the waters, if let loose.94

Again, pools of stagnant water may produce foul and unwholesome exhalations, which are injurious to the health of those living within reach thereof.95 So, likewise, the one who collects water on his premises must respond for damages which result from the seepage or percolating of such water through the earth into premises of his neighbor and injuring the latter's cellars and the like.96

§ 669. Water Rights-Classes.-There are three classes of waters to be considered in connection with violations of rights in respect thereof, viz., surface water, subsurface water, streams and watercourses. Individual rights therein differ, and each class must be separately considered.

§ 670. Surface Water Defined.-Surface water is that which is diffused over the surface of the ground, having no regular course or stream, and is unconnected with any watercourse, of a fugitive nature, the result of rains and snows, or derived from springs or surplus of water. It continues to be surface water until it reaches some well-defined channel into which it is accustomed to and does flow with other waters, and it then ceases to be surface water." But in

97

94 Defiance Water Co v. Olinger, 54 Ohio St. 532, 44 N. E. 238; Kentucky Lumber Co. v. Miracle, 101 Ky. 364, 41 S. W. 25.

95 Nevins v. Peoria, 41 Ill. 502, 89 Am. Dec. 392; Neal v. Henry, Meigs, 17, 33 Am. Dec. 125; State v. Rankin, 3 S. C. 438, 16 Am. Rep. 737; Luning v. State (Wis.), 2 Pinn. 215, 1 Chand. 178, 52 Am. Dec. 153; Mills v. Hall, 9 Wend. 315, 24 Am. Dec. 160; Fuller v. Chicopee Mfg. Co., 16 Gray, 46; Story v. Hammond, 4 Ohio, 376.

96 See Aldworth v. Lynn, 153 Mass. 53, 25 Am. St. Rep. 608, 26 N. E. 229.

97 "Surface water is usually defined to be such as falls from the clouds in the form of rain or snow, or rises to the surface in springs": Gray v. Williams, 98 Cal. 157, 35 Am. St. Rep. 163, 169,

some decisions may be found statements to the effect that water arising from floods and overflows of rivers and watercourses is also surface water.98

Waters composed partly of seepage water escaping through a levee by percolation and partly of rainfall are subject to the rules in regard to surface waters." 99 The subject of the right of land owners with regard to the overflow of streams of water presents some peculiar features, some states calling it surface water, but applying the common-law rule allowing the land owner to prevent it from coming upon his land.100 Others say that the overflow is still a part of the stream, and as a riparian owner has not the right to interfere with the natural flow of a stream, he may not heighten the banks in such a manner as will keep the overflow from his lands and cast it upon those of an adjoining or lower proprietor. 101 Still other courts declare that while the flood waters are not surface water, but constitute a portion of the watercourse, the riparian owner has a right to confine it to the ordinary channel of the stream and prevent it from inundating his premises, 102

32 Pac. 976. "Surface waters are such as lie or are spread over the surface, or percolate the soil, as in swamps, and do not flow in a particular direction": Case v. Hoffman, 84 Wis. 438, 36 Am. St. Rep. 937, 54 N. W. 793. See Gould on Waters, sec. 263.

98 Cairo etc. R. Co. v. Stevens, 73 Ind. 278, 38 Am. Rep. 439; Morris v. Council Bluffs, 67 Iowa, 343, 56 Am. Rep. 343, 25 N. W. 274; Taylor v. Fikas, 64 Ind. 167, 31 Am. Rep. 114.

99 Gray v. McWilliams, 98 Cal. 157, 35 Am. St. Rep. 163, 32 Pac. 976.

100 Cairo etc. R. Co. v. Stevens, 73 Ind. 278, 38 Am. Rep. 139; Taylor v. Fikas, 64 Ind. 167, 31 Am. Rep. 114. See Morris v. Council Bluffs, 67 Iowa, 343, 56 Am. Rep. 343, 25 N. W. 274.

101 Burwell v. Hobson, 12 Gratt. 322, 65 Am. Dec. 247; O'Connell v. East Tennessee etc. R. Co., 87 Ga. 246, 27 Am. St. Rep. 246, 13 S. E. 489. See Kansas City etc. R. Co. v. Smith, 72 Miss. 677, 48 Am. St. Rep. 579, 17 South. 78.

102 Lamb v. Reclamation Dist., 73 Cal. 125, 2 Am. St. Rep. 775,

§ 671. Two Doctrines Adopted in This Country in Respect to Surface Waters-The Common Law and Civil Law. The rules of law governing the rights and liabilities of property owners in respect to surface water differ at common law, and under the civil law, the states in this country dividing upon the question, some adopting the common-law doctrine, while others follow the civil law. The rules prevailing under the two systems of jurisprudence will be stated, with the position in the states in respect thereto.

§ 672. Same Continued-The Common Law as to Surface Water.-Unlike the civil law, the common law recognizes no natural easement existing in favor of an upper proprietor in the lands of the lower proprietor, for the natural flow of water from the lands of the upper proprietors, but, on the contrary, it permits anyone to protect his own premises from surface water in such a way as he may wish, without rendering himself liable to others who may be injured thereby. The proprietor of an inferior or lower tenement or estate may lawfully obstruct or hinder the natural flow of surface water thereon, and in so doing may turn the same back upon or off onto or over the lands of other proprietors without liability for injuries ensuing from such obstruction or diversion. The common law does not regard such acts as constituting a legal injury to the other proprietor. But under both the civil and common-law rules the land owner who collects the surface water from his premises and discharges it as a body upon the land of another must respond in damages for the injuries caused there

14 Pac. 625; Cass v. Dicks, 14 Wash. 75, 53 Am. St. Rep. 859, 44 Pac. 113; McDaniel v. Cummings, 83 Cal. 515, 23 Pac. 795; Kansas City etc. R. Co. v. Smith, 72 Miss. 677, 48 Am. St. Rep. 579, 17 South. 78.

by 103 Arguments presented in favor of the common law are, in substance, that it best promotes and conserves the varied and important interests of both the public and private individuals incident to and growing out of this question; that it permits and encourages public and private improvements, and at the same time restrains those engaged in such enterprise from unnecessarily or carelessly injuring another. That a strict and literal application of the doctrine of the civil law would in many places, and in large districts of country, materially retard useful and profitable improvements. The common law has been recognized and followed in Arkansas,104 Connecticut,105 ,105 Indiana,106 Iowa,107 Kansas,108 Maine, 109

103 Davis v. Crawfordsville, 119 Ind. 1, 12 Am. St. Rep. 361, 21 N. E. 449; Rychlicki v. St. Louis, 98 Mo. 497, 14 Am. St. Rep. 651, 11 S. W. 1001; Patoka Twp. v. Hopkins, 131 Ind. 142, 31 Am. St. Rep. 417, 30 N. E. 896; Fremont etc. R. Co. v. Marley, 25 Neb. 138, 13 Am. St. Rep. 482, 40 N. W. 948; Yerex v. Eineder, 86 Mich. 24, 24 Am. St. Rep. 113, 48 N. W. 875; Gregory v. Bush, 64 Mich. 37, 8 Am. St. Rep. 797, 31 N. W. 90; Rhoads v. Davidheister, 133 Pa. St. 226, 19 Am. St. Rep. 630, 19 Atl. 400; Beatrice v. Leary, 45 Neb. 149, 50 Am. St. Rep. 546, 63 N. W. 370; Jacobson v. Van Boening, 48 Neb. 80, 58 Am. St. Rep. 684, 66 N. W. 993; Noonan v. Albany, 79 N. Y. 470, 35 Am. Rep. 540; Gillison v. Charleston, 16 W. Va. 282, 37 Am. Rep. 763; Hans v. Borough of Bethlehem, 134 Pa. St. 12, 19 Atl. 437; Field v. West Orange Twp., 46 N. J. Eq. 183, 2 Atl. 236; McCormick v. Kansas City etc. R. Co., 70 Mo. 359, 35 Am. Rep. 431; Beard v. Murphy, 37 Vt. 104, 86 Am. Dec. 693; Miller v. Lanbach, 47 Pa. St. 155, 86 Am. Dec. 521; Adams v. Walker, 34 Conn. 466, 91 Am. Dec. 742.

104 In Little Rock etc. Ry. Co. v. Chapman, 39 Ark. 463, 43 Am. Rep. 280, a case involving obstruction of surface water by a rai!way, the merits of the civil and common law as to surface water was ably discussed, the court being constrained, by virtue of a statute in that state making the common law the rule of decision, not to accept the doctrines of the civil law.

105 Chadeayne v. Robinson, 55 Conn. 345, 3 Am. St. Rep. 55, 11 Atl. 592; Grant v. Allen, 41 Conn. 156.

106 Adopts common law: Cairo etc. R. R. Co. v. Stevens, 73 Ind. 278, 38 Am. Rep. 139; Cleveland etc. Ry. Co. v. Huddleston, 21 Ind. App. 621, 69 Am. St. Rep. 385, 52 N. E. 1008. See Davis v. Crawfordsville, 119 Ind. 1, 12 Am. St. Rep. 361, 21 N. E. 449.

Minnesota,111

Massachusetts,110 Missouri,112 Nebraska,118 New Hampshire,114 New York,115 New

107 Wilson v. Duncan, 74 Iowa, 491, 38 N. W. 371; Drake v. Chicago etc. Ry. Co., 70 Iowa, 59, 29 N. W. 804, in the opinion clearly approves the common law. See Livingston v. McDonald, 21 Iowa, 164, 89 Am. Dec. 563, where the doctrines of the civil law are discussed; Podhaisky v. Cedar Rapids, 106 Iowa, 543, 76 N. W. 847. 108 An owner is under no obligation to provide a way for the escape of surface water, but has the right to change the surface of the ground so as to interfere with or obstruct the flow: Atchison etc. Ry. Co. v. Hammer, 22 Kan. 763, 31 Am. Rep. 216. He may hinder and obstruct the flow: Missouri P. etc. Ry. Co. v. Keys, 55 Kan. 205, 49 Am. St. Rep. 248, 40 Pac. 275.

109 Bangor v. Lansil, 51 Me. 521.

110 Turner v. Dartmouth, 13 Allen, 293; Bates v. Smith, 100 Mass. 181; Gannon v. Hargadon, 10 Allen, 106, 87 Am. Dec. 625.

111 Subject to reasonable restrictions, the lower proprietor, in the use and enjoyment of his land, may obstruct or hinder the natural flow of surface water, and turn it back upon the lands of others, without liability. He may not collect it in a stream or body and turn it upon the lands of another: Rowe v. St. Paul etc. Ry. Co., 41 Minn. 384, 16 Am. St. Rep. 706, 43 N. W. 76; O'Brien v. City of St. Paul, 25 Minn. 331, 33 Am. Rep. 470,

112 A proprietor may drain surface water from his land in such a way as may suit him, provided he does so in a usual and careful manner: Jones v. Hannoven, 55 Mo. 462; Imlar v. City of Springfield, 55 Mo. 119, 17 Am. Rep. 645. A railroad is not liable to land owner for an injury by an overflow of surface water occasioned by the roadbed, skillfully constructed: Abbott v. Kansas City etc. Ry., 83 Mo. 271, 53 Am. Rep. 581, overruling McCormick v. K. C. etc. R. R. Co., 70 Mo. 359, 35 Am. Rep. 431; Shane v. Railroad Co., 71 Mo. 237, 36 Am. Rep. 480.

113 The rule that surface water is a common enemy, and that an owner may defend his premises against it, without liability to an adjoining owner, is subject to the rule that every proprietor must so use his own property as not to unnecessarily and negligently injure his neighbor: Beatrice v. Leary, 45 Neb. 149, 50 Am. St. Rep. 546, 63 N. W. 370. A railroad company, like any other owner, may protect itself from the flow of ordinary surface water: Chicago etc. R. Co. v. Shaw (Neb.), 88 N. W. 508; Morrisey v. Railroad Co., 38 Neb. 406, 56 N. W. 946.

114 The land owner may disturb the natural drainage to any degree necessary in the reasonable use of his own land: Swett v. Cutts, 50 N. H. 439, 9 Am. Rep. 276. See Bassett v. Salisbury Mfg.

Co., 43 N. H. 569, 82 Am. Dec. 179.

115 "It is to be observed that the law has always recognized a