Jersey,116 ,116 Rhode Island,117 Texas,118 Washington,119 and Wisconsin.120 An upper proprietor of land, it

wide distinction between the right of an owner to deal with surface water falling or collecting on his land, and his right in the water of a natural watercourse. In such water, before it leaves his land and becomes part of a definite watercourse, the owner of the land is deemed to have an absolute property, and he may appropriate it to his exclusive use, or get rid of it in any way he can, provided only that he does not cast it by drains or ditches upon the land of his neighbor; and he may do this, although by so doing he prevents the water reaching a natural watercourse, as it formerly did, thereby occasioning injury to the mill owners or other proprietors on the stream. . . . . The owner of wet and spongy land cannot, it is true, by drains or other artificial means, collect the surface water into channels, and discharge it upon the land of his neighbor to his injury. This is alike the rule of the civil and common law": BarkWilcox, 86 N. Y. 140, 40 Am. Rep. 519; Goodale v. Tuttle, 29 N. Y. 459.

ley v.

....

116 Owner may withhold the water flowing on his property from passing in its natural course onto that of his neighbor, and in the same manner may prevent the water falling on the land of the latter from coming on his own: Bowlsby v. Speer, 2 Vroom, 351, 86 Am. Dec. 216. The diversion or altered transmission of surface water by the erection of a building is not an actionable injury, even though damage ensues: Jessup v. Bamford Bros. etc. Co. (1902), 66 N. J. L. 641, 88 Am. St. Rep. 152, 51 Atl. 147.

117 Sweet v. Conley, 20 R. I. 385, 39 Atl. 326; Buffum v. Harris, 5 R. I. 243.

118 Gross v. Lampasas, 74 Tex. 195, 11 S. W. 1086.

....

119 "Surface water.. is regarded as a common enemy, against which anyone may defend himself, though in so doing he inflicts injury upon another": Cass v. Dicks, 14 Wash. 75, 53 Am. St. Rep. 859, 44 Pac. 113.

120 Hoyt v. Hudson, 27 Wis. 656, 9 Am. Rep. 473. "The owner of an estate, for the purpose of securing or protecting its reasonable use and enjoyment, may obstruct or divert surface waters thereon, and which have come down from higher levels, by embankments, ditches, drains, culverts and other constructions; and in doing so may lawfully hinder the natural flow of such waters and 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": Lessard v. Stram, 62 Wis. 112, 51 Am. Rep. 715, 22 N. W. 284; Allen v. Chippewa Falls, 52 Wis. 434, 38 Am. Rep. 753, 9 N. W. 284; Johnson v. Chicago etc. R. R. Co., 80 Wis. 641, 27 Am. St. Rep. 76, 50 N. W. 771.

is held by some authority, may by lapse of time obtain a right by prescription to have surface water flow over the lands of a lower owner, so that the latter may not at any time exercise his common-law right, but this is doubtful.121

§ 673. Surface Waters-The Civil Law.-According to the doctrine of the civil law, it is considered that as surface water is descendible by nature, its usual flow should not be interfered with, and that its burden should be borne by the land where it naturally flows, rather than by land where it can only be made to flow by artificial means. An upper proprietor has an easement to have all waters falling or accumulating on his land discharged over the lower tenement, to the same extent as they would be discharged in a state of nature; and this natural flow or passage of the waters cannot be interrupted or prevented by the lower property owner. If, therefore, the latter should by any means obstruct the natural flow and cast it back upon the upper tract, its owner has a right of action.

This rule has been adopted as the law in Alabama,122 Georgia, 123 Illinois, 124 Louisiana,125 Michi

121 Schnitzius v. Bailey, 48 N. J. Eq. 409, 22 Atl. 732; Gould on Waters, sec. 279, Swett v. Cutts, 50 N. H. 439, 9 Am. Rep. 276, seems to deny any prescriptive right. "The passage of water from rain and melting snow over the surface of land for twenty years gives no right to its continuance": Parks v. Newburyport, 10 Gray, 28. 122 Nininger v. Norwood, 72 Ala. 277, 47 Am. Rep. 412; Farris v. Dudley, 78 Ala. 124, 56 Am. Rep. 24.

123 Farkas v. Towns, 103 Ga. 150, 68 Am. St. Rep. 88, 29 S. E. 700; Mayor etc. v. Sikes, 94 Ga. 30, 47 Am. St. Rep. 132, 20 S. E. 257.

124 Gormley v. Sanford, 52 Ill. 158. See Gillham v. Madison Co. R. R. Co., 49 Ill. 484, 95 Am. Dec. 627; Jacksonville etc. R. R. Co. v. Cox, 91 Ill. 500.

125 Servitude against a lower estate requires it to receive all waters which naturally flow from a higher one. The lower proprietor is not allowed to erect anything to obstruct the natural flow

Torts, Vol. II-82

* 674. Construction of Embankments on Streams to Protect Lands from Floods.-The right of an owner of land on the bank of a stream or river to erect on his own land an embankment which increases the overflow in times of flood upon the lands of the opposite proprietor, or of other owners along the stream, presents an entirely different question than that involved in surface waters last considered.131 If there is an overflow from a river or other stream in times of flood which never returns, but spreads out over

of the waters: Martin v. Jett, 12 La. 501, 32 Am. Dec. 120, note; Kharpe v. Levert, 51 La. Ann. 1249, 26 South. 100; Hooper v. Wilkinson, 15 Ia. Ann. 497, 77 Am. Dec. 194.

126 Leidlein v. Meyer, 95 Mich. 586, 55 N. W. 367; Boyd v. Conklin, 54 Mich. 583, 52 Am. Rep. 831, 20 N. W. 595. In Yerex v. Eineder, 86 Mich. 24, 24 Am. St. Rep. 113, 48 N. W. 875, it is held that a land owner may not dig an artificial ditch and carry the surface water thereon at once upon the land of an adjoining owner. He cannot collect it and cast it in a body upon the proprietor below him, to his injury: Gregory v. Bush, 64 Mich. 42, 8 Am. St. Rep. 797, 31 N. W. 90. This rule is common to both the civil and common law.

127 The doctrine of the civil law was recognized in Butler v. Peck, 16 Ohio St. 335, 88 Am. Dec. 452, and was adopted as the rule in Tootle v. Clifton, 22 Ohio St. 247, 10 Am. Rep. 732, and again recognized as the law of this state in Crawford v. Rambo, 44 Ohio St. 279, 7 N. E. 429; Blue v. Wentz, 54 Ohio St. 247, 43 N. E. 493.

128 An upper proprietor may collect surface water on his land by means of artificial drains, and discharge it upon the land of a lower proprietor at a single point which is the natural watershed: Meixell v. Morgan, 149 Pa. St. 415, 34 Am. St. Rep. 614, 24 Atl. 216. It is settled law that for the sake of agriculture, a man may drain his ground which is too moist, and discharge it according to its natural channel: Kaufman v. Griesemer, 26 Pa. St. 407, 67 Am. Dec. 487.

129 Louisville etc. R. R. Co. v. Hays, 11 Lea. 382, 47 Am. Rep. 291.

180 Beard v. Murphy, 87 Vt. 99, 86 Am. Dec. 693.

131 Ante, sec. 673.

the lower ground, it then becomes surface water, and is to be treated as such. But if the surrounding country is so situated that the overflow of the stream will naturally return to it, then it does not become surface water, and the rules of law relating to the riparian rights of owners abutting on streams applies.

The right of an owner, through whose land a stream passes, to construct embankments and other guards on the bank to prevent the stream from washing the bank away or for the purpose of protecting his land or otherwise benefiting it, under reasonable restrictions, appears to be clearly recognized by the authorities. He must exercise ordinary care and prudence to avoid causing a material injury to an adjoining owner, and will render himself liable in damages for failure in this, if his acts result in causing substantial injury to the lands of another.132

$675. Subterranean Streams and Percolating Waters Distinguished and Explained. In taking up the subject of underground waters and the rights of persons therein, a clear understanding of the nature of each class of waters and their distinguishing

132 Crawford v. Rambo, 44 Ohio St. 279, 7 N. E. 429; Wallace v. Drew, 59 Barb. 413. In Rau v. Minnesota etc. R. R. Co., 13 Minn 422, a railroad company was held for damages from an overflow caused by an excavation on its land. "A land owner on the bank of a river who erects on his own land an embankment which increases the overflow in times of flood upon the lands of the opposite proprietor, to the injury of the latter, is liable in damages therefor": O'Connell v. East Tennessee etc. Ry. Co., 87 Ga. 246, 27 Am. St. Rep. 247, 13 S. E. 489. A riparian owner has no right to retain by means of a dam the waters of a natura! stream, and then to discharge the same so that they overflow the lands of a riparian owner below: McKee v. Delaware etc. Canal Co., 125 N. Y. 353, 21 Am. St. Rep. 740, 26 N. E. 305. To same effect: Sullens v. Chicago etc. Ry. Co., 74 Iowa, 659, 7 Am. St. Rep. 501, note, 38 N. W. 545. An owner was held liable for re

characteristics is essential, before a separate discussion of each is entered upon.

"Percolating waters" is a phrase of well-defined meaning, and must not be confused with subsurface waters or subterranean streams or waters, and by it is meant those waters which percolate through underground strata, having no certain course, no defined limits, without any permanent, distinct or defined channel, but which ooze through the soil in varying quantities and in uncertain directions.133 "It is essential to the nature of percolating waters that they do not form part of the body or flow, surface or subterranean, of any stream. They may either be rain waters which are slowly infiltrating through the soil, or they may be waters seeping through the banks or bed of a stream which have so far left the bed and the other waters as to have lost their character as part of the flow." 134

The rule is well settled that underground waters are presumed to be percolating waters until a defined, continuous channel is shown. In order to prevent the classification of underground streams with percolating waters, they must be known or easily ascertainable, and discoverable from the surface of the ground without subsurface explorations.135

moving a natural ledge of rock, which retarded the flow of the water, thereby increasing the flow of the water on the lower proprietor: Grant v. Kuglar, 81 Ga. 637, 12 Am. St. Rep. 348, 8 S. E. 878. Every owner of land may protect himself from overflow in times of flood: Hoard v. De Moines, 62 Iowa, 326, 17 N. W. 527.

133 Chasemore v. Richards, 7 H. L. Cas. 349; Strait v. Brown, 16 Nev. 317, 40 Am. Rep. 497; Frazier v. Brown, 12 Ohio St. 294; Wheatley v. Baugh, 25 Pa. St. 528, 64 Am. Dec. 721. See valuable note "As to What are Percolating Waters," with all the leading cases, 67 Am. St. Rep. 663; The Wyandotte Club v. Sells, 6 Ohio N. P. 64.

134 Vineland Irr. Dist. v. Azuza Irr. Co.,, 126 Cal. 486, 58 Pac. 1057.

135 Hansen v. McCue, 42 Cal. 303, 10 Am. Rep. 299; Swett v.