made on the lower ground; nor can he collect into one channel waters usually flowing off into his neighbor's field by several channels, and thus increase the wash upon the lower fields. But he may-and good husbandry sometimes requires that he should-cover up and conceal the drains, keeping the place of discharge unchanged. And he may use running streams to irrigate his land, even though he does thereby not unreasonably diminish the supply of his neighbor, so also he may use proper means of draining his ground when it is too moist, and discharge the water according to the naturel channel, even though the flow of water upon his neighbor be thereby somewhat increased. If it be difficult to ascertain from the character of the surface what is the natural channel, the course in which the water has long been peaceably and openly permitted to run, will be considered as having had a legitimate origin; for long duration has the force of law. If the owner of the upper ground wrongfully directs an unnatural quantity of water upon the ground of a lower neighbor, by collecting small streams together and discharging them at one place, or by any other means, his neighbor below may have an action against him, but he cannot justify the erection of an embankment to stop the water, if thereby the water is improperly forced upon another owner. So in this case, it is manifest that the Cemetery Company had no right to collect into one place and discharge upon the defendant, Riddle's ground, the water falling upon the whole surface of the hill, and which before had discharged itself in many directions. If he could stop it without injury to any but the Cemetery Company, he had a right to do it; but he cannot do it to the injury of the plaintiff, Martin. Nor can the defendant justify himself by saying that he only turned the water upon the road, and that it was the duty of the authorities having charge of the road to provide means for carrying it off. A road is A road is a way for travel, not for water, and it would be ruinous to our public roads if each adjoining proprietor could insist upon discharging the drainage of his land upon them, or preventing the roads from being drained upon his land. When there is a natural channel or hollow for discharging the flow of the water, it must be suffered to remain until altered by agreement of those concerned, and the water cannot be turned upon the road until the proper authorities have provided the means of carrying it off." It is scarcely necessary to add that, upon such a clear and concise charge to the jury, laying down as it does the rights and duties of all parties, the plaintiff, the defendant, the Cemetery Company and the highway authorities, a verdict was given in favor of the plaintiff, Martin.

This case was carried to the Supreme Court of the United States, where the appeal was dismissed, and the verdict of the jury was approved and confirmed.

Another case tried in the same State was, Kauffman and others against Griesemer. The plaintiffs, Kauffman and others and the defendant Griesemer, owned adjoining lands, and about thirty rods above the boundary line separating their lands, there was a strong spring on the plaintiffs' property, the natural outlet of which was in the direction of the defendant's farm, though the water did not appear to have reached the defendant's land before a ditch dug by the plaintiffs conveyed it there. This natural outlet, having rising ground on both sides of it, served to carry off not only the water of this spring so far as it came, but also the water from rain and snow which fell on a large area of land owned by the plaintiffs and others. A public road had been laid out across this outlet below and near the springs with a small bridge composed of logs and plank, over the outlet, leaving a waterway underneath the bridge. The bridge was repaired from time to time, and the water passage under it cleared of rubbish and debris, and finally a plank waterway or sluiceway was put in to conduct the water

across the road and under the bridge. A short time before the action was brought the road authorities abandoned the road, and then the plaintiffs took out the plank sluiceway and opened a larger passage for the water. The defendant claimed that this increased the flow of the water upon his land from the plaintiffs' springs, and to prevent it he erected a sod dam across the ditch or watercourse on his own land. This dam caused the water to flow back on the plaintiffs' land and they brought this action.

The judge who presided at the trial, in charging the jury upon the facts above set out, and the law applicable to such a state of facts, among other things, said: "One has no right to alter the natural drainage so far as to throw upon his neighbor waters that he had not received before. A familiar illustration of this would be the case of drainage from a roof. One may build his roof as he pleases, but not so as to throw the water from it upon his neighbor's adjoining lot. And, as it is with a roof, so it is with the drainage of the land itself. One may drain his land as advantageously to himself as possible, but he must not acquire that advantage at the expense of the neighbor. Each of the neighbors,' says POTHIER, may do upon his own what seemeth good to him, in such manner nevertheless that he may not injure his neighboring heritage.' But one has no right to cut away or drain natural reservoirs upon his land whereby he may reclaim the land occupied by the same, if thereby he causes more water to flow upon his neighbor's land. The reclamation of the land is certainly for the advantage of the common weal as well as the person owning it, but such reclamation is not allowed by the law at the expense of a contiguous owner. I have no right to make my property more valuable by making my neighbor's less valuable. Against injuries of this nature one may protect himself by necessary countervailing structures, and if some damage result to the party whose actions rendered such structures necessary, not more, however, than may be advisable from a judicious and reasonable exercise of a right of self-protection, the party so damnified would have no just ground of complaint. The defendant could have no right to prevent the waters of floods and freshets flowing where they were accustomed to flow. It was the plaintiffs' right that such water should flow there, and indeed, all the waters that had been accustomed to flow there."

The jury returned a verdict in favor of the defendant, Griesemer. Upon an appeal to the Supreme Court of the United Sates from the law as laid down by the trial judge, the judgment of the Supreme Court was delivered by WOODWARD, J., who said: "Almost the whole law of the watercourses is founded on the maxim of the Common Law, Aqua currit et debet currere, (water flows naturally and should be permitted thus to flow.). Because water is descendible by nature, the owner of a 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 flow or fall upon the sup rior. This easement is called a servitude in the Roman law, and consists, says PARDESSUS, in the subjection of the inferior heritage towards those whose lands are more elevated, to receive the waters which flow from them naturally, and, quoting the Code Civil, he adds, 'This obligation applies only to waters which flow naturally, without any act of man' Those which come either

from springs or from rain falling directly on the heritage or even by the effect of the natural disposition of the places, are the only ones to which this expression of the law can be applied. It is not, however, to be understood,' he goes on further to say, 'that because the flow of water must not be caused by the act of man, that therefore the proprietor who transmits water to the inferior heritage is not permitted to do anything upon his own land, that he is condemned to abandon it to perpetual sterility, or never vary the course of cultivation, simply because such acts would produce some change in the manner of discharging the

water. The law intends not this. It prevents only the immission into the inferior heritage of the waters, which would never have fallen there by the disposition of the places alone. It neither would nor could refuse to the superior proprietor the right to aid and direct the natural flow.

Such cases as Martin against Riddle recognize the principle that the superior owner may improve the lands by throwing increased waters upon his inferior, through the natural and customary channels which is a most important principle in respect not only to agricultural, but to mining operations also. It is not more agreeable to the laws of nature, that waters should descend, than it is that lands should be farmed and mined; but in many cases they cannot be, if an increased volume of water may not be discharged through natural channels and outlets. The principle therefore is to be maintained, but it should be prudently applied. This court refused to apply it as among several owners of city lots, each of whom, it was held in Bentz against Armstrong, must so regulate and grade his own lot as that the water which falls or accumulates upon it shall not run upon the lot of his neighbor. It was greatly misapplied by the plaintiffs, when they supposed that they might not only increase the ordinary flow, but might dig a new channel for it to and into the defendant's land. The construction of the sod dam was not setting up a nuisance against a nuisance, any more than the shutting the door against an unwelcome visitor is a nuisance. The only servitude the plaintiffs could claim in the defendant's lands was that it should receive the overflow which was natural and customary, and the court throughout their charge guarded this right."

Butler against Peck was a case tried in the State of Ohio, and the principles enumerated in the two preceding cases were adopted. The court said: "The principle seems to be established and indisputable, that where two parcels of land, belonging to different owners, lie adjacent to each other, the lower one owes a servitude to the upper to receive the water which naturally runs from it, provided the industry of man has not been used to create the servitude. Or, in other words more familiar to the students of the Common Law, the owner of the upper parcel of land has a natural easement in the lower parcel to the extent of the natural flow of water from the upper parcel to and upon the lower. But to what extent, if any, the owner of the upper parcel may gather and concentrate, by artificial means, the waters which fall upon or originate in this parcel, and send them upon the lower parcel, and how far a due regard to the great interests of agriculture, and the policy of our legislation, will authorize the owner of the upper parcel to go in facilitating, hastening and to some extent temporarily increasing the flow of the water from the upper to the lower estate, are questions not involved in the record under review before us, and which we do not assume to decide."

The English authorities are along the same line of doctrine as the American cases above set forth, and although the former deal almost exclusively with the subterranean waters in the effect produced by mining operations, it will be observed that the principles of law apply equally to water whether on the surface or underground.

COULSON & FORBES at page 128 say: "The principles of law regulating the duties and liabilities of the owners of land with regard to the escape and overflow of waters and the rights they have of protecting their land from such overflow have been discussed of late in a series of important cases and seem now to be settled on a satisfactory basis.

The general principles regulating the liabilities of landowners with regard to the escape and overflow of water seems to be as follows: Where the owner of land, without wilfulness or negligence, uses the land in the ordinary manner of

its use, though mischief thereby accrues to his neighbor, he will not be liable for damages; but, where for his own convenience, he diverts or interferes with the course of a stream, or where he brings water upon his land which would not naturally have come upon it, even though in so doing he acts without wilfulness or negligence, he will be liable for all direct and proximate damages, unless he can show that the escape of the water was caused by an agent beyond his control, or by a storm which amounts to vis major, or the act of God, in the sense that it is practically, if not physically impossible, to resist it." The principles of law, they proceed to say: "stated above having been held to apply equally to water upon the surface and underground, and in fact most of the most important decisions have arisen with regard to the effects of mining operations."

Rylands against Fletcher is the first of the series and we are only interested in the law as propounded by the highest court reached by this case, namely, the House of Lords. Lord CAIRNS, L.C., says: "The plaintiff is the occupier of a mine and works under a close of land. The defendants are the owners of a mill in his neighborhood, and they propose to make a reservoir for the purpose of keeping and storing water to be used about their mill on another close of land, which for the purposes of this case may be taken as being adjoining to the close of the plaintiff, although, in point of fact, some intervening land lay between the two. Underneath the close of land of the defendants, on which they proposed to construct their reservoir, there were certain old and disused mining passages and works. There were five vertical shafts and some horizontal shafts communicating with them. The vertical shafts had been filled up with soil and rubbish, and it does not appear that any person was aware of the existence of either the vertical shafts or of the horizontal works communicating with them. In the course of the working by the plaintiff of his mine, he had gradually worked through the seams of coal underneath the close, and had come in contact with the old and disused works underneath the close of the defendants. In that state of things the reservoir of the defendants was constructed. It was constructed by them through the agency and inspection of an engineer and contractor. Personally, the defendants appear to have taken no part in the works or to have been aware of any want of security connected with them. As regards the engineer and contractor, we must take it from the case that they did not exercise, as far as they were concerned, that reasonable care and precaution which they might have exercised, taking notice, as they appear to have taken notice of the vertical shafts filled up in the manner I have mentioned. However, my Lords when the reservoir was contructed and filled, or partly filled with water, the weight of the water bearing upon the disused and imperfectly filled up vertical shafts, broke through the shafts. The water passed down them and into the horizontal workings, and from the horizontal workings under the close of the defendants; it passed on into the workings under the close of the plaintiff and flooded his mine, causing considerable damage for which this action was brought.

The Court of the Exchequer, when the special case stating the facts to which I have referred was argued, was of opinion that the plaintiff has established no cause of action. The Court of Exchequer Chamber, before which an appeal from this judgment was argued, was of a contrary opinion, and the judges there unanimously arrived at the conclusion that there was a cause of action, and that the plaintiff was entitled to damages. My Lords, the principles on which the case must be determined appear to me extremely simple. The defendants, treating them as the owners and occupiers of the close on which the reservoir was constructed, might lawfully have used their close for any purpose for which it might in the ordinary course of the enjoyment of land be used; and if, in what I may term the natural uses of that land there had been any accumulation of water,

either on the surface or underground, and if by the operation of the laws of nature that accumulation of water had passed off into the close occupied by the plaintiff, the plaintiff could not have complained that that result had taken place. If he desired to guard himself against it, it would have lain upon him to have done so by leaving or interposing some barrier between his close and the close of the defendants, in order to have prevented that operation of the laws of nature.

As an illustration of that principle, I may refer to a case which was cited in the argument before your lordships, the case of Smith against Kenrick in the Court of Common Pleas, which decided that where the owner of a coal mine on a higher level worked out the whole of his coal in the ordinary way, leaving no barrier between his mine and the mine on a lower level, so that the water percolating into the upper mine flowed into the lower mine and obstructed the owner in getting his coal, it was held that the owner of the lower mine had no ground of complaint. On the other hand, if the defendants, not stopping at the natural use of the close, had desired to use it for any purpose, which I may term a nonnatural use, for the purpose of introducing into the close that which in its natural condition was not in or upon it, for the purposes of introducing water either above or below ground, in quantities and in a manner not the result of any work or operation on or under the land; and if, in consequence of their doing so, or in consequence of any imperfection in the mode of doing so, the water came to e-cape and pass off into the close of the plaintiff, then it appears to me that that which the defendents were doing, they were doing at their own peril; and if in the course of their doing it, the evil arose to which I have referred, the evil, namely, of the escape of the water and its passing away to the close of the plaintiff, then for the consequences of that, in my opinion, the defendants would be liable As the case of Smith against Kenrick is an illustration of the first principle to which I have referred, so also the second principle to which I have referred is well illustrated by another case in the same court, the case of Baird against Williamson, which was also cited in the argument at the bar and decides, that where the owner of an upper mine did not merely suffer the water to flow through his mine, but pumped up quanities of water which passed into the plaintiff's mine, in addition to that which would have naturally reached it, and so occasioned him damage, it was held that, though this was done without negligence and in the due working of the defendant's mine, yet he was responsible for damages so occasioned. My Lords, these simple principles, if they are well founded, as it appears to me they are, really dispose of this case. The same result is arrived at on the principles referred to by Mr. Justice BLACKBURN in his judgment in the Court of the Exchequer Chamber, where he states the opinion of that court as the law in these words: We think that the true rule of law is that the person who, for his own purposes, brings on his land and collects and keeps there anything likely to do mischief if it escapes, must keep it at his peril; and if he does not do so, he is prima facie answerable for all damage which is the natural consequence of its escape. He can excuse himself by showing that the escape was owing to the plaintiff's default, or perhaps that the escape was the consequence of vis major or the act of God. But as nothing of this sort exists here it is unnecessary to imagine what excuse would be sufficient. The general rule, as above stated, seems on principle just. The person whose grass or corn is eaten down by the escaping cattle of his neighbour, or whose mine is flooded by the water from his neighbors reservoir, or whose cellar is invaded by the filth from his neighbor's privy, or whose habitation is made unhealthy by the fumes and noisome vapors from his neighbor's alkali works, is damnified without any fault of his own; and it seems but reasonable and just that the neighbor who has brought something on his own property (which was not naturally there)