Argued March 8, 1880
Decided June 1, 1880
W.F. Cogswell for appellant.
S.E. Filkins for respondents.
Water-courses are the means which nature has provided for the drainage of the country through which they pass, and from the natural servitude of lands upon a water-course to receive the waters flowing therein from the lands above springs the right of the owner of the superior heritage to have the water from his lands, of which the water-course is the natural outlet, drained into and carried off thereby, and the duty of the owner of the inferior and servient tenement not to interfere with or obstruct its passage. But the right to the use of a water-course for the discharge of surface or other waters exists only in respect of waters of which the water-course is the natural outlet, and it does not justify the diversion and turning of the water of one stream into another, not its natural channel, thereby subjecting lands on the stream into which the diversion is made to the servitude or easement of a water-way for the water thus discharged into it. This is the principle upon which several of the cases to which the appellant refers were decided, and they have no application to the case before us. ( Merritt v. Parker, 1 N.J. 460; Tillotson v. Smith, 32 N.H. 90; Mayor, etc., of Baltimore v. Appold, 42 Md. 442.)
The right of an owner of lands, through which a water-course runs, to have the same kept open, and to discharge therein the surface water, which naturally flows thereto, is not however limited to the drainage and discharge of surface water into the stream in the same precise manner as when the land was in a state of nature, and unchanged by cultivation or improvements. The owner of lands drained by a water-course, may change and control the natural flow of the surface water therein, and by ditches or otherwise accelerate the flow, or increase the volume of water which reaches the stream, and if he does this in the reasonable use of his own premises, he exercises only a legal right, and incurs no liability to a lower proprietor. ( Waffle v. N.Y.C.R.R. Co., 53 N.Y. 11; Miller v. Laubach, 47 Pa. St. 154.) This right is subject to the qualification that one owner cannot, by artificial arrangements on his land, concentrate and discharge into the stream surface water, in quantities beyond the natural capacity of the stream to the damage of other owners. ( Noonan v. City of Albany, 79 N.Y. 470.) The interests of society are promoted by the cultivation and improvement of the soil, the working of mines, and by other industries connected with the use of land, and the rule of law does not prevent the use of water-courses for artificial drainage, although the volume of the stream is thereby somewhat enlarged, and the water is discharged at a different time or manner from what it would be if the land was kept in a state of nature, provided no material injury is occasioned to other riparian owners. These views are decisive of this case. The plaintiffs in opening the quarry on their premises, were exercising a lawful right. The excavation made formed a reservoir into which the surface water from the contiguous lands collected, and in the spring, when the plaintiffs commenced their operations, they pumped this water, together with that arising from the melting snows, and what came from the small water-courses cut off by the excavation, into the water-course, which lower down crossed the defendant's farm.
The court found that this water, if the excavation had not been made, would have naturally descended and flowed into the stream, and that although the flow of water when the pumping was going on was greater than it otherwise would have been, the natural capacity of the water-course was sufficient to carry off the water pumped into it, together with the other water running in the stream, and there was no finding that the defendant sustained any damage from the acts of the plaintiffs.
Under these circumstances, the act of the defendant, in filling up the channel and obstructing the flow of the water, was unlawful, and the judgment should therefore be affirmed.
All concur except DANFORTH, J., taking no part, having been of counsel.