ANDREWS. J.

The defendant by means of the Lark street and connecting sewers, and the manner of grading Colonie street, concentrated the surface-water and sewage of a large territory, and discharged it in one body at the junction of Lark and Colonie streets into a ravine. It passed after its discharge over ground used as a dumping place for refuse, and down the declivity, until it reached the valley, or bed of the ravine, and flowing easterly, reached the premises of the plaintiff, and having no sufficient outlet, flooded the plaintiff's lot, and deposited thereon the filth carried by the sewers, and the sand and dirt washed down by the water as it passed over the dumping ground. This prima facie established a right of action in the plaintiff. A municipal corporation has no greater right than an individual to collect the surface-water from its lands or streets into an artificial channel, and discharge it upon the lands of another, nor has it any immunity from legal responsibility for creating or maintaining nuisances. ( Weet v. Village of Brockport, 16 N.Y., 172, note; Byrnes v. City of Cohoes, 67 id., 204; Haskell v. City of New Bedford, 108 Mass., 208; Attorney-General v. Leeds Corporation, L.R. [5 Chy. App. Cas.], 583.)

The defendant sought to defend the injury to the plaintiff on two grounds, first, that it had the legal right to drain into a stream which flowed through the bed of the ravine across the plaintiff's land without responsibility for consequential injuries resulting to the plaintiff from such drainage, and that the water and sewage which flooded the plaintiff's premises were discharged into this stream, and second, that the injury was attributable to an obstruction of the channel of the stream below the plaintiff's lot, which prevented the water and sewage from passing therein, as it otherwise would have done. In support of the first proposition the defendant's counsel relies upon the decision of this court in Waffle v. The New York Central Railroad Company ( 53 N.Y., 11), in which it was held that the owner of lands upon a natural water-course, may collect, by means of ditches, the surplus water on his premises, and discharge it into the stream, although by so doing the flow of water therein at some seasons may be increased, and at other times, at periods of low water, by reason of the more rapid drainage, may be diminished, to the detriment of a mill-owner below. The right of a riparian owner to drain the surface-water on his lands into a stream which flows through them, and which is its natural outlet is an incident to his right as riparian owner to the reasonable use of the stream. But this right is not, we conceive, an absolute right under all circumstances, irrespective of the size of the stream, or the natural purpose which it subserves, to throw into it, surface-water by means of ditches or drains, when by so doing it will be filled beyond its natural capacity, and overflow and flood the lands of a lower proprietor. The stream into which the sewage and water collected by the defendant found its way, was a mere rivulet of water, the outlet of springs at the head of the ravine. It may also before the sewers were built, or Colonie street was graded, have received a portion of the surface-water from the territory drained thereby. But at that time the surface-water had no defined channel. It was subject to be disposed of by the ordinary processes of nature. Absorption and evaporation would diminish the amount which otherwise might have found its way to the valley, and the discharge into the stream of the portion not otherwise disposed of would naturally be gradual, and reach it at different points in its course. It does not appear that the city owned any of the land between the sewer and the water-course, but it had with the consent of the property owners changed the water-course from its natural condition, and constructed a box-drain two or three feet square in its place. In view of the character and capacity of this water-course, it cannot we think be held as matter of law that there was the right in the city to discharge into the stream the water from Colonie street, and from the Lark street sewer, although by so doing it would flood the premises of the plaintiff. It follows that the first request to charge, was properly refused. The request assumes that the city using reasonable care, had the absolute right to drain into the water-course in question, irrespective of the capacity of the stream or the amount of water discharged into it, and the court was requested to instruct the jury that it was not liable "for any damage caused by any increase in the amount of water thrown into the stream by such drainage."

The second ground upon which the reversal of the judgment is sought, is also we think untenable. The obstruction to the creek-drain, so called, was not so far as the evidence shows attributable to any act of the plaintiff, or any act for which he was responsible. The filth and material carried into it by the sewers, may and doubtless did contribute to choke and fill it. The plaintiff had no control over the drain below his premises. He was not bound to protect himself against the consequence of the illegal act of the defendant, by removing, or causing the removal of the obstruction. The casting on the plaintiff's premises of the filth from the sewers, was a nuisance, and the defendant was bound to abate it. Because the injury complained of would not have happened, or would have been diminished if the creek-drain had been unobstructed, does not relieve the defendant from legal responsibility.

We think the case was fairly presented to the jury, and that the judgment should be affirmed.

All concur.

Judgment affirmed.