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In the case now under consideration the appellant undertook to alter the established outlet through which the surface water was carried away. It was incumbent on the corpora

tion to have this work done in a careful and skilful Duty of manner. If done carelessly and negligently, so that, present case. company in as a consequence, injury to the plaintiff ensued, an action for damages is maintainable. The facts in evidence, relating to the manner in which the work was done, were considered and passed upon by the jury, guided and enlightened, in relation to the legal principles applicable to the evidence believed by them to be true, by the instructions emanating from the court. The rulings of the court on the instructions asked for present the questions now to be determined.

Instructions

given.

The plaintiff offered but one prayer, which was granted; and to this ruling the defendant excepted. In this instruction the jury are told that if they believe from the evidence that the defendant closed the open trench or gutter, and raised the bed of Clinton Street, and that the closing of the gutter and raising the bed of the street caused such water as usually flowed through said gutter to dam and overflow the plaintiff's premises, and that such damage and overflow would not have occurred but for the closing of said gutter and raising the bed of said street, and that the plaintiff's house was injured by such overflow, then they must find their verdict in favor of the plaintiff. In other words, the jury were told that if they believed, from the facts offered in evidence, that the property of the plaintiff was injured, and that the injury was caused by the act of the defendant in closing the usual outlet for the surface water, raising the bed of the street, and constructing another outlet of insufficient capacity to carry the water likely to be in it, the defendant was liable. This instruction was tantamount to saying that the defendant was liable for injuries resulting from its own unskilfulness or negligence, and there was no error in granting it.

The defendant offered ten prayers, two of which were rejected, and another granted with modifications made by the court. To the rejection of these two prayers, and to the granting of the other as modified, exceptions have been taken. The fourth and fifth prayers of the defendant were properly rejected. The fourth prayer presents the proposition, "that there is no legally sufficient evidence in this case that the defendant changed the natural direction of the drainage at or near the plaintiff's premises." This is repeated in the fifth prayer, with the addition that there is no legally sufficient evidence that the defendant ever diminished or decreased the carrying capacity of any of the drains, except the drain across Clinton Street.

An analysis of the evidence in relation to alterations in the drainage would lead to useless prolixity; and it is sufficient to say, that there is proof in abundance, offered on the part of the plaintiff, tending to show that there have be enchanges in the mode and direction of the drainage, and that the present plan of drainage adopted by the defendant is insufficient to carry off the currents of water. The court could not have granted these two prayers relating to the legal. insufficiency of the evidence, because, each being in the nature of a demurrer to evidence, the truth of the evidence must have been assumed.

The ninth prayer of the defendant reads thus: "That if the jury shall believe from the evidence that the original construction of plaintiff's house, or alterations made in it by plaintiff, or the changes naturally incident to a house such as that of the plaintiff, or any of them, was sufficient to cause the injuries to the house, such as have been testified to, then, under the pleadings in this case, the plaintiff is not entitled to recover."

This prayer was modified by the addition of the following words: "unless the jury, after taking into consideration all the facts and circumstances of the case as testified to by the witnesses (including such defective construction and changes, if the jury shall so find), shall determine from a preponderance of testimony that the injuries complained of were occasioned by the acts of the defendant, as set forth in the plaintiff's first prayer."

It will be observed, that the prayer as offered did not put it to the jury to find that the original construction or the alterations in the house did actually cause the injury which forms the foundation for this action. The prayer as presented tended to mislead the jury. Moreover, in this case there was another independent and efficient cause which might have been productive of the injury, and the court very properly modified the instruction so as to bring that cause under consideration by the jury. Balt. & Potomac R. R. Co. v. Reaney, 42 Md. 136.

Finding no error in any of the rulings of the learned judge in the court below, the judgment should be affirmed.

Judgment affirmed.

Surface Waters. The decisions of the various courts of the several States concerning surface waters show an irreconcilable difference of opinion. In a number of States the courts have adopted what is known as the common-law rule, while in others what is called the civil-law rule has been followed. Referring to the origin of this difference, the Supreme Court of Missouri say, in the case of Shane v. Kansas City, St. J. & C. B. R. Co., 71 Mo. 237; S. C., 5 Am. & Eng. R. R. Cas. 64 ; 36 Am. Rep. 480, "This difference may be traced to the great importance attached by the courts on one side to the maxim, Sic utere tuo, ut alienum non lædas; whilst those adopting a contrary view seem disposed to give unlimited effect to the maxim, Cujus est solum, ejus est usque ad cœlum, and therefore to leave every proprietor to take care of himself, except where streams are concerned."

Common-Law Rule. The common-law rule was stated by the Massachusetts Supreme Court in the case of Gannon v. Hargadon, 92 Mass. (10 Allen) 106, 109, in the following terms: "The right of an owner of land to occupy and improve it in such manner and for such purpose as he may see fit, either by changing the surface, or the erection of buildings or other structures thereon, is not restricted or modified by the fact that his own land is so situated with reference to that of adjoining owners that an alteration in the mode of its improvement or occupation in any portion of it will cause water which may accumulate thereon by rains and snows falling on its surface, or flowing on it from the surface of adjoining lots, either to stand in unusual quantities on other adjacent lands, or pass into and over the same in greater quantities or in other directions than they were accustomed to flow.... Cujus est solum, ejus est usque ad cœlum is a general rule applicable to the use and enjoyment of real property, and the right of a party to the free and unfettered control of his own land above, upon, and beneath the surface cannot be interfered with or restrained by any consideration of injury to other land which may be occasioned by the flow of more surface water in consequence of the lawful appropriation of land by its owner to a particular use or mode of enjoyment; nor is it at all material, in the application of this principle of law, whether a party obstructs or changes the direction and flow of surface waters by preventing it from going within the limits of his land, or by erecting barriers, or changing the level of the soil so as to turn it off in a new course after it has come within his boundaries. The obstruction of surface waters 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." This rule has been adopted in the following States:

Connecticut. Adams v. Walker, 34 Conn. 466; Gillett v. Johnson, 30 Conn. 180; Wadsworth v. Tillotson, 15 Conn. 366; s. c., 39 Am. Dec. 391. Indiana.- Cairo & V. R. Co. v. Stevens, 73 Ind. 278; s. c., 38 Am. Rep. 139; Schlichter v. Phillipy, 67 Ind. 201; Taylor v. Fickas, 64 Ind. 167; s. c., 31 Am. Rep. 114.

Kansas.

- Kansas City & E. R. Co. v. Riley, 33 Kans. 374: s. c., 20 Am. & Eng. R. R. Cas. 116; Gibbs v. Williams, 25 Kans. 214; s. c., 37 Am. Rep. 241; Atchison, T. & S. F. R. Co. v. Hammer, 22 Kans. 763; Palmer v. Waddell, 22 Kans. 352.

Maine. Murphy v. Kelley, 68 Me. 521; Morrison v. Bucksport & B. R. R. Co., 67 Me. 353; Greeley v. Maine Cent. R. R. Co., 53 Me. 200; Bangor v. Lansil, 51 Me. 521.

Massachusetts. — Jackman v. Arlington Mills, 137 Mass. 277; Rathke v. Gardner, 134 Mass. 14; Macomber v. Godfrey, 108 Mass. 219; Emery v. Lowell, 104 Mass. 13; Bates v. Smith, 100 Mass. 181; Curtis v. Eastern R. Co., 96 Mass. (14 Allen) 55; Franklin v. Fisk, 95 Mass. (13 Allen) 211; Gannon v. Hargadon, 92 Mass. (10 Allen) 106; Dickinson v. Worcester, 89 Mass. (7 Allen) 19; Flagg v. Worcester, 79 Mass. (13 Gray) 601; Parks V. Newburyport, 76 Mass. (10 Gray) 28; Ashley v. Wolcott, 65 Mass. (11 Cush.)

192.

New Hampshire. - Swett v. Cutts, 50 N. H. 376; s. c., 9 Am. Rep. 276. New York.-Barkley v. Wilcox, 86 N. Y. 140; s. c., 40 Am. Rep. 519; Lynch 7. Mayor, 76 N. Y. 60; s. c., 32 Am. Rep. 271; Gould v. Booth, 66 N. Y. 62; Vanderwiele v. Taylor, 65 N. Y. 341; Cohocton Stone R. v. Buffalo, N. Y. & E. R. R., 51 N. Y. 573; Curtiss v. Ayrault, 47 N. Y. 73; Cott v. Lewiston R. R. Co., 36 N. Y. 214; Pixley v. Clark, 35 N. Y. 532; Brown v. Bowen, 30 N. Y. 538; Goodale v. Tuttle, 29 N. Y. 459; Bellinger v. New York Cent. R. R., 23 N. Y. 42; Waffle v. Porter, 61 Barb. (N. Y.) 130; Waffle v. New York C. R., 58 Barb. (N. Y.) 413; Trustees v. Youmans, 50 Barb. (N. Y.) 316; Ellis v. Duncan, 21 Barb. (N. Y.) 230; Sleight v. Kingston, II

Hun (N. Y.), 594; Wagner v. Long Island R. Co., 2 Hun (N. Y.), 633; Gardner v. Newburgh, 2 Johns. Ch. (N. Y.) 162; s. c., 7 Am. Dec. 526.

Rhode Island. Wakefield v. Newell, 12 R. I. 75; s. c., 34 Am. Rep. 598; Buffum v. Harris, 5 R. I. 253.

49.

Vermont. - Beard v. Murphy, 37 Vt. 104; Chatfield v. Wilson, 28 Vt.

Wisconsin. Lessard v. Stram, 62 Wis. 112; s. c., 51 Am. Rep. 715; Hanlin v. C. & U. W. R. Co., 61 Wis. 515; O'Connor v. Fond du Lac, A. & P. R. Co., 52 Wis. 530; s. c., 5 Am. & Eng. R. R. Cas. 82, 38 Am. Rep. 753; Allen v. Chippewa Falls, 52 Wis. 434; s. C., 38 Am. Rep. 748; Eulrich v. Richter, 37 Wis. 226; Fryer v. Warne, 29 Wis. 511; Hoyt v. Hudson, 27 Wis. 656; Pettigrew v. Evansville, 25 Wis. 223; s. c., 3 Am. Rep. 50.

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Civil-Law Rule. Under what is known as the civil-law rule, the owner of the higher land has a servitude or natural easement upon the lower adjoining land for the discharge of all surface waters flowing naturally thereon from the higher land, and the owner of the lower land cannot prevent or obstruct the natural passage of such water to the injury of the higher land. The grounds upon which this rule rests are given in the case of Martin v. Riddle, 29 Pa. St. 415, in which the court said, "Where two fields adjoin, and one is lower than the other, the lower must necessarily be subject to all the natural flow of water from the upper one. The inconvenience arising from this position is usually more than compensated by other circumstances: hence the owner of the lower ground has no right to erect embankments whereby the natural flow of the water from the upper grounds shall be stopped, nor has the owner of the upper ground a right to make any excavations or drains by which the flow of water is diverted from its natural channel, and a new channel made on the lower ground; nor can he collect into one channel, waters usually flowing off into his neighbors' fields by several channels, and thus increase the waste upon the lower fields." And in the case of Kauffman v. Griesemer, 26 Pa. St. 407, 413; s. c., 67 Am. Dec. 437, it was remarked, that "almost the whole law of water courses is founded in the maxim of the civil law, aqua currit et debet currere ut currere solebat. Because water is descendible by nature, the owner of the dominant or superior heritage has an easement in the servient or inferior tenement for the discharge of all waters which by nature rise in or fall upon the superior." The rules set out in these two cases have been adopted in the following States; to wit,

Alabama. — Farris v. Dudley, 78 Ala. 124; s. c., 56 Am. Rep. 24; Crabtree v. Baker, 75 Ala. 91; s. c., 51 Am. Rep. 424; Nininger v. Norwood, 72 Ala. 277: s. c., 47 Am. Rep. 412; Hughes v. Anderson, 68 Ala. 280; s. c., 44 Am. Rep. 147.

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California. - Ogburn v. Connor, 46 Cal. 346; s. c., 13 Am. Rep. 213. Illinois. Peck v. Herrington, 109 Ill. 611; s. c., 50 Am. Rep. 627; Gormley v. Sanford, 52 Ill. 158; Gilham v. Madison County R. Co., 49 Ill. 484; Nevins v. City of Peoria, 41 Ill. 502.

Iowa.

- Bartle v. City of Des Moines, 38 Iowa, 414; Simpson v. Keokuk, 34 Iowa, 568; Russell v. Burlington, 30 Iowa, 262; Ellis v. Iowa City, 29 Iowa, 229; Livingston v. McDonald, 21 Iowa, 160.

Louisiana. Lattimore v. Davis, 14 La. 161; s. c., 33 Am. Dec. 581; Martin v. Jett, 12 La. 501; s. C., 32 Am. Dec. 120; Minor v. Wright, 16 La. An. 151; Hooper v. Wilkinson, 15 La. An. 497; s. c., 77 Am. Dec. 194. Maryland. Philadelphia, W. & B. R. Co. v. Davis, ante.

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Michigan. Boyd v. Conklin, 54 Mich. 583.

North Carolina. - Porter v. Durham, 74 N. C. 767; Overton v. Sawyer,

I Jones (N. C.), L. 308; s. c., 75 Am. Dec. 444.

Ohio. Tootle 7. Clifton, 20 Ohio St. 247; s. c., 10 Am. Rep. 732; Butler

v. Peck, 16 Ohio St. 334; Crawford v. Rambo, 44 Ohio St. 279.

Pennsylvania. - Hays v. Hinkleman, 68 Pa. St. 324; Martin v. Riddle, 26 Pa. St. 415; Kauffman v. Griesemer, 26 Pa. St. 407; s. c., 67 Am. Dec. 437. Tennessee. Louisville & N. R. Co. v. Hays, 11 Lea (Tenn.), 382; s. c., 14 Am. & Eng. R. R. Cas. 284; Carriger v. East Tennessee & V. R. Co., 8 Lea (Tenn.), 388.

Modified Doctrine. — In Arkansas the court, in the case of Little Rock & F. S. R. Co. v. Chapman, 39 Ark. 463; s. c., 43 Am. Rep. 280, repudiated the civil-law rule purely as such, and also the common-law rule in its utmost rigidity, and expressed preference for a rule under which each case would be decided upon its merits, with a reasonable regard at once to the right of the lower owner to ward off surface waters from his premises, and of the maxim, sic utere tuo, ut alienum non lædas.

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In South Carolina. — In Waldrop v. Greenville, L. & S. Ry. Co. post, the South Carolina court has, in an opinion obiter, expressed its preference for the rule as laid down in Arkansas court.

Conflicting Decisions. — In Missouri. — In Missouri the court in their earlier decisions followed the common-law rule (see Munkers v. Kansas City, St. J. & C. B. R. Co., 60 Mo. 334; s. c., 72 Mo. 514; 5 Am. & Eng. R. R. Cas. 79; Hosher v. Kansas City, St. J. & C. B. R. Co., 60 Mo. 329; McCormick v. Kansas City, St. J. & C. B. R. Co., 57 Mo. 433), but departed therefrom in two subsequent cases, and announced their preference for the civil-law rule. See Shane v. Kansas City, St. J. & C. B. R. Co., 71 Mo. 239; s. c., 5 Am. & Eng. R. R. Cas. 64, 36 Am. Rep. 480; McCormick v. Kansas City, St. J. & C. B. R. Co., 70 Mo. 359; s. C., 35 Am. Rep. 43. In the later cases it has, however, reverted to the common-law rule, originally sanctioned by them. See Benson v. C. & A. R. R. Co., 78 Mo. 504; Stewart v. City of Clinton, 70 Mo. 603. And in the case of Abbott v. Kansas City, St. J. & C. B. R. R. Co., 83 Mo. 271; s. c., 20 Am. & Eng. R. R. Cas. 103; 53 Am. Rep. 481, it expressly overruled the decisions which follow the civil-law rule.

In New Jersey. - In New Jersey the only decision directly in point adopts the common-law rule. See Bowlsby v. Speer, 31 N. J. L. (2 Vr.) 352. But in the case of Field v. West Orange, 36 N. J. Eq. (9 Stew.) 118; s. c., 27 N. J. Eq. (12 C. E. Gr.) 600, the vice-chancellor said, "The broad doctrine declared by some courts, that no right of any kind can be claimed in the flow of surface water, and that neither its retention, diversion, repulsion, nor altered transmission will constitute an actionable injury, has never been adopted in all its length and breadth in this State."

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Obiter Dicta. — In West Virginia. In this State there are no decisions bearing directly upon the point; but in Gillison v. Charleston, 16 W. Va. 284, 303, the court, after an examination of the authorities, say, “A part of the authorities we have cited seem to recognize the principle that individuals and municipal corporations have the right to dispose of surface water in any manner they please, to prevent its flow over adjoining land upon their premises, although the result may be to flood the adjoining land, or expel it, throw it upon the lands of their neighbors, and in either case are not liable to an action. These cases seem to lose sight entirely of the wholesome principle of ethics, as well as law, that a man may use his own property in any manner he pleases, providing he does not thereby interfere with the rights of his neighbor." Statutory Provisions. — In Texas. In Texas there has been no decision upon the point, but in the case of railroads there is a statute of that State which provides that railroads shall be liable for any obstruction in the flow of surface waters. See Gulf, Colorado, & S. F. R. R. Co. v. Helsley, 62 Tex. 593; s. c., 20 Am. & Eng. R. R. Cas. 89.

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