
    Ephraim F. Curtiss, Appellant, v. John Ayrault, Respondent.
    The owner of the soil upon which surface waters stand, or through which they soak, has the right to lead them off in such direction and in such quantity as he sees fit, taking care only that he does not injure his neighbor by discharging them upon him in an unusual quantity or at an unusual place, and has the right at his pleasure to change the direction of the drainage. But where the owner of a tract of land, upon which was a marsh, has dug a ditch therefrom through other portions of the tract, making a permanent channel in which the waters gathered in the marsh flow in a continuous stream, mutually benefiting the lands drained and the lands to which is conveyed a supply of good water, and subsequently and while these reciprocal benefits and burdens were existing and apparent, has divided the tract into parcels, and conveyed the parcels to different grantees, who contracted with reference to such a condition of the lands, the respective grantees have no right to change the relative condition of one parcel to the injury of another.
    The application of this rule does not depend solely upon the purpose for which the change was made by the grantor. It is the open and visible effect which the change has wrought, which is presumed to influence the mind of the purchaser. This presumption, however, may be repelled by actual knowledge upon his part, of facts which would negative any deductions drawn from the visible, physical condition of the property. The question is, did the purchaser, in arriving at the price he would pay, consider, and have a right to consider, as an element of the value of the land he was bidding for, the benefits it derived from the artificial channel ? And this is a question of fact for a jury. The benefits and burdens of such a ditch are reciprocal, to be enjoyed and borne by all the lands.
    (Argued December 8, 1871;
    decided December 19, 1871.)
    Appeal from judgment of an order of the General Term of the Supreme Court in the seventh judicial district, denying motion for new trial and directing judgment upon verdict for defendant.
    
      This was an action to recover damages for an interference with the plaintiff’s alleged right to the 'Waters of a stream or water-course, stated in the complaint to be a natural stream.
    On the 13th day of January, 1849, and for many years prior thereto, one Hewbold owned, and was in possession of a tract of farming land in the town of Caledonia, between the Genesee river and the Genesee Valley canal, on the western part of which tract was a marsh or swamp. A small creek known as “ Indian ” or “ Mackenzie ” creek, having^ its origin in a swamp near by, entered on the tract near its southwest corner, through a culvert under the canal, and was absorbed in a marsh on Hewbold’s tract.
    In order to relieve the land from these waters, drains were made by the owner of the tract, at. different times before 1849, and among others a drain by means of an open ditch now known as the “ Curtiss ” ditch, running easterly from the marsh to a cove in the river on the east end of the tract; and a drain by means of a similar ditch known as the “ canal ” or “ State ” ditch, running northerly from “ Indian ” creek to the highway, thence along the highway to a sluice, and under the sluice to White creek.
    ■ The Curtiss ditch was deepened from time to time,, and formed an artificial channel through which a living stream of water ran throughout the year, and furnished water for pastur- . age, horses, and cattle, at the east end of the tract where the cove was located.
    The land was not divided by fences or otherwise until the 13th of January, 1849, on which day Hewbold sold the tract in five different parcels, by deeds dated and delivered on that day; and for aught that appears, at one and the same time.
    Each deed conveyed the land described in it by metes and bounds, “ with the appurtenances and all the estate, title and interest ” therein, of Hewbold, with warranty in the usual form, and neither deed contained any reference" to any ditch or stream of water.
    The plaintiff, through several mesne conveyances from the grantee of Hewbold, became the owner of lot Ho. 5, or the most easterly parcel of said tract, which contained a portion of the “ cove.”
    The defendant, through several mesne conveyances from parties other than those through whom the plaintiff derived title to his parcel from Newbold, acquired the title of New-bold to the most westerly portion of the tract, or lot No. 1, which embraced the marsh and the “ canal ” ditch.
    The intermediate parcels two, three and four, became the property of other owners.
    The plaintiff, after he purchased, used the waters of the cove in watering cattle; and his predecessors, including Newbold, had done the same.
    Subsequently, to 1849, both the said ditches became so obstructed from neglect, that the land in lot No. 1 was again marshy and untillable. In 1853, Henry E. Rochester, the then owne^of that lot, undertook to clear out and enlarge the canal ditch and its connections, so as to make a more efficient drain in that direction. After which, he sold to Swan, who, in 1864, deepened the same ditch for the same purpose; and the defendant having purchased from Swan, in 1865, continued the same work for the same purpose, and thereby caused water -to flow from the marsh through the canal ditch,- which would otherwise have passed through the cove ditch. For that diversion this suit was commenced in January, 1866.
    At the close of the testimony, the court directed the jury to find a verdict for the defendant. To which direction, the plaintiff’s counsel duly excepted.
    
      3. Hubbard cmd A. J. Abbott for appellants.
    The water as it existed before any ditch was dug, was, in the sense of the law, a water-course. (Arnold v. Foster, 12 Wend., 330; Gilbert v. Johnson, 30 Conn., 180 [43 U. S. Dig., 584, § 2]; Bouvier’s Dic., Titles, Water-course, Streams.) Such a watercourse was conveyed to plaintiff by Newbold and successive grantees under the name and designation of land. (Bouvier’s Dic., Title, Water-course; Cary v. Daniels, 8 Metc., 480, 481; 2 Black. Com., 18, 19.) Assuming this, the defendant is liable for diverting the water. (3 Kent’s Com., 439; Arnold v. Foote, 12 Wend., 330; Van Hoesen v. Coventry, 10 Barb., 518; 39 Barb., 311; 11 Gray, 434; 1 McCarther, 335; 50 Maine, 479; Crooker v. Bragg, 10 Wend,, 266; 10 Barb., 518, 522.) The rights of parties in an artificial water-course are the same as if the water-course were natural. (Townsend v. McDonald, 12 N. Y. R., 381; Major v. Chadwick, 11 Adolph. & Ellis, 571.) The purchasers took their several premises as they then existed, with all the incidents that then visibly attached to each. None of them could alter the arrangement. (Lampman v. Milks, 21 N. Y. R., 505; Haight v. Price, 21 N. Y. R., 241; Cary v. Daniels, 8 Metc., 466; Mosher v. Galt, 10 Wis., 513.)
    
      G. F. Danforth for respondent.
    An easement in or over one parcel of land cannot be asserted in favor of another, while both parcels are owned in fee simple by the same person. (2 Washburn on R. P., 26; Gayetty v. Bethune, 14 Mass., 49 ; Spencer v. Spencer, 2 Iredell Rep., 95; Burr v. Mills, 21 Wend., 290; Prebel v. Reed, 17 Maine, 75; Cary v. Daniels, 8 Metc., 466.) All the lots were the property of the vendor in fee, who could not have a right of water as against his own property. (Carbrey v. Willis, 7 Allen, 364; Johnson v. Jordan, 2 Metc., 234.) The language of the deeds is appropriate, to convey an easement or appurtenance already existing and belonging to the land, but not to create a new one. (Whalley v. Thompson, 1 Bos. & Pul., 371; Clements v. Lambert, 1 Taunt., 204; Grymes v. Peacock, 1 Bulstrode, 17; Saundys v. Oliff, Moore, 467.) As the lots were conveyed at the same time, an easement in favor of one cannot be implied. The lots were sold clear of encumbrance. An easement is an encumbrance. (Maynard v. Esther, 17 Penn.; Russell v. Hartford, 2 Eq. Cases, 507; Enffield v. Brown, 33 L. J. Ch., 249.) Plaintiff has acquired no rights by prescription. (Wood v. Wand, Exch. R., 748; Arkwright v. Gell, 5 Mees. & W., 203; Greatrex v. Hayward, 8 Exch. Rep. 291; S. C., 20 Eng. Rep., 379; Gale & Whatley on Easements, p. 64, marg. page 89; Colvin v. Burnet, 17 Wend., 564.) It was plaintiff’s duty to keep the ditch open so as not to injure the defendant. (Gale & Whatley on Easements, p. 215; Taylor v. Whitehead, 2 Doug., 748.) The defendant, by the act complained of, violated no right of plaintiff. (Arkwright v. Gell, 5 Mees. & W., 203; Wood v. Wand, 3 Exch., 748; Mason v. S. and H. R. Co., Com. Law Series, vol. 6, p. 548; Greatrex v. Hayward, 8 Exch., 291; Gavel v. Martin, 18 C. B. Reports, 732; Gannon v. Hargadon, 10 Allen, 106; Luther v. Winnesinib Co., 9 Curby, 171; Dickinson v. Worcester, 7 Allen, 19; Smith v. Miller, 11 Gray, 147; Waffle v. N. Y. C. R., 58 Barb., 413.)
   Forger, J.

We have examined with care the testimony in this case, particularly those portions of it to which we are pointed by the brief of the appellant, and which he claims show the existence in former days of a natural' stream. We are of the opinion that the jury would not have been warranted in finding, that there was ever a natural stream running from the mouth of Indian creek or from the marsh, into the cove'. There are some expressions which might indicate this, if they were detached from the mass of the testimony and considered alone. But the strong force and preponderance of it all is, that only in time of high water did the waters from the marsh flow over the banks of the river or of the cove, and not then in a regular and defined channel. When the flood had no more subsided than so as to leave a depth of three or four feet in places on the marsh, there was no overflow, and witnesses for the plaintiff say in explicit terms, that before the ditch was dug, there was no regular channel for the flow of the water into the cove.

The waters which stood upon the marsh, or were held in partial suspense in the earth, were, in legal effect surface waters. They belonged to the owner of the soil on which they stood or through which they soaked. He might lawfully lead them off in such direction and in such quantity as he saw fit, and no neighbor could complain, for no neighbor had a right to receive them by percolation. The owner had only to see to it, that he did not injure a neighbor by discharging them upon him in unusual quantity, or at unusual place. The following authorities sustain this position: Ellis v. Duncan (Ct. of App.), cited in Goodale v. Tattle (29 N. Y., 466); Buffum v. Harris (5 Rd. I., 243); Rawstron v. Taylor (11 Exch., 369); Broadbent v. Ramsbotham (id., 602); Wheatley v. Branch (1 Casey, 25 Penn. St., 528).

This state of facts and this rule of law accompanying them, continued until ISTewbold after having made ditches, divided the tract into parcels and conveyed the parcels to different grantees. And even had he without having made the ditches, divided the tract and conveyed the parcels to different owners, the same rule would have applied. The grantee of any parcel would have had the right to have carried off these, being surface waters, without affecting any right of any one to receive them from his land. (See cases above cited.)

But ISTewbold being the owner of the whole tract, did very much affect and change its material condition, and the relations of different parts of it to each other. By digging ditches and deepening and extending them, he made a permanent channel by which these waters flowed in a continuous stream, from and through the parcel conveyed to the grantor of the defendant, through other parcels, on to and through the parcel conveyed to the plaintiff’s grantor. There is no doubt but that he benefited the lands now owned by the defendant by freeing them from standing water, and that the benefit conferred would continue so long as the ditch was kept open and free below. There is no doubt but that at the present day the continuance of the ditch and the keeping of it open and free above, would be a benefit to the lands of the plaintiff in the constant and ample supply of good water which it would afford. And if at the time ISTewbold made sale of these parcels of land, these reciprocal benefits and burdens were existing and apparent, and were part of the advantages possessed by these lands, and part of the value attached to them in the estimation of those dealing with each other in regard to them, and if they contracted with a reference to such a condition of the lands, neither Newbold nor his respective grantees had right after that to change the relative condition of one parcel to the injury of another parcel, in these respects. This principle is distinctly stated and clearly elucidated in Lampman v. Milks (21 N. Y., 505), and does not need particular discussion here; and see Dunkles v. The Milton R. R. Co. (4 Foster N. H., 489).

The only difficulty is whether the facts of this case exactly square with the requirements of the rule in 21 N. Y., laid down in these words: The parties are presumed to contract in reference to the condition of the property at the time of the sale, and neither has a right, by altering arrangements then openly existing, to change materially the relative value of the respective parts.” Now some stress is laid upon the purpose which Newbold had in making the ditch, and it is claimed that it was nought else than to drain his lands. But the application of the rule does not depend solely upon the purpose for which the changes have been made in the tenement by the owner. It is the open and visible effect upon the parts which the execution of the purpose has wrought, which presented to the view of the purchaser, is presumed to influence his mind, and to move him in. his bargaining. We have held in Simmons v. Cloonan (decided December, 1871), that this presumption may be repelled by the actual knowledge of the contracting parties, which may negative any deductions to be drawn from the visible physical condition, of the property. And so far, a knowledge of the purpose of the owner is an element. But there was testimony tending to show, that though the first and always the chief purpose of Newbold was to drain the lands more immediately affected by the marsh, there was an auxiliary purpose, to furnish all other lands a constant and full supply of water. The question whether the purchasers from Newbold contracted with him, and bought these lands in reference to their condition at the time of sale, depends as well ppon what was their purpose and understanding, and what from the physical view of the land, might he inferred to be the effect upon them in their estimate of their advantages and value with this artificial stream of water led' through the different parts of it. And the question for decision at the trial was: Considering all the facts established by the testimony, arid all the inferences properly to be made from it, and all the presumptions properly to be indulged, did the grantor of the plaintiff, in arriving at the price he would pay, consider and have a right to consider, as an element of the value of the land he was bidding for, this ditch across the tract giving this supply of water through it % How there is testimony tending to an affirmative answer; and in our judgment, it was nbt a correct disposition of the case to take it from the consideration of the jury, and to direct to them their verdict in the negative.

In the first place we have shown, the fact that this pure, clear water ran to this parcel of land in full and constant supply. This condition of things was open and visible. The presumption arises at once that a person of even ordinary judgment in quest of a farm must perceive this advantage and be influenced by a consideration of its value. Then there is express testimony that the plaintiff’s grantor, the grantee of Hewbold, had been before the conveyance to him, the agent of Hewbold and familiar with the premises, and that he knew that Hewbold was used to pasture cattle in part on this parcel of land, and that they found their supply of water in the stream and in the cove. The testimony also tends to show that the lands are peculiarly advantageous for the pasturage of cattle in the summer and of keeping them through the winter, with the ultimate purpose of marketing them as fat cattle, and that the supply of this water through this ditch was useful and necessary therefor. And the proof is ainple that the water was of use to the land and of great value, and there is testimony tending to show that it is highly necessary to its full enjoyriierit.

We think that with instructions from the court to the jury in accordance with the rules announced in 21 N. Y. (supra), it should have been submitted to them to say whether the grantee of ifewbold of the parcel of land now owned by the plaintiff, contracted for it in reference to its condition in respect to this ditch and its water at the time of the sale, and whether to be deprived of it is to. lose something of value and of necessity.

if or would an affirmative answer to it and a judgment in accordance therewith impose upon the defendant, as is argued, the necessity of keeping up a swamp on his land. The benefits and burdens of this ditch are reciprocal, to be enjoyed and borne by all the lands.- As the ditch was to the observation as much an aqueduct from one parcel as an aqueduct to another, so it must continue to be.. And the defendant has as good right that it should lead away-all the surface water and all that Indian creek brought down, as the plaintiff has that it should be led. So that, as the defendant may not obstruct the ditch to divert the water, the plaintiff may not obstruct it to prevent its flow. And as the plaintiff claims that the defendant may not ditch on Ms own land and drain away this water in another direction, he must permit him to keep open the ditch on the plaintiff’s land, so that it be effectual for the defendant’s benefit.

It is also urged that the act of the defendant complained of by the plaintiff violated no right of his, for that the ditch the capacity of which he increased, was upon the land of the defendant’s grantor when Ifewbold sold to the plaintiff’s grantor. The act which the plaintiff complains of is the diversion of water which when his grantor bought of Eewbold, was flowing to the land purchased. It matters not how this diversion is effected, whether by digging a new ditch or deepening an old one. The reciprocal rights of the parties (a certain state of facts existing) are to have the status of the tract maintained as it was when Eewbold sold. If water then ran through the ditch which Ayrault has deepened, he may keep a stream there of the same volume it then had, but may not increase its volume by a diversion of the water which then flowed to the plaintiff’s land.

And we remark here, that we do not mean to conflict with cases cited by the respondent, such as Arkwright v. Gill (5 M. & Welsby, 203). We think that they will be found to be cases in which the owner of land, having for a time drained the surface water from it in a certain direction, while still the owner of the same tract, and the owner of the whole of it, sees fit to change the direction of the drainage. Though he may have yielded in the first place a benefit to other land by his method, he was not precluded from abandoning it and adopting another, for he had sold none of the land benefited, to one who had contracted for it in reference to its condition of benefit. It was doing with his own as he had a right, the right of no one else having intervened by his act. It was a dominant tenement foregoing the enjoyment of an easement upon a servient one. In the case in hand, both tenements, by the acts of the former owner of both as a whole, have become each dominant and each servient to the other, as their respective needs require. Had there been no drain until the severance of the great tract into parcels, and then the defendant on his parcel had made drains leading to the plaintiff’s parcel, which stopping afterwards, he had made others elsewhere, and of this the plaintiff had complained, the cases cited would have been in point.

The point is not taken in this court by the respondent, that the complaint of the plaintiff does not put his right of action upon this ground. Hor does it appear to have been taken below. Doubtless, if it had been, the ample power of the court to allow amendments would have obviated the objection without injury to either party.

The judgment of the court below should be reversed, a new trial ordered, with costs to abide the event.

All concur.

Judgment reversed.  