
    Moran vs. McClearns.
    Where the complaint,- in a justice’s court, did not, in terms, charge the defendant with breaking and entering the plaintiff’s close, but the facts which constituted the real cause of action were stated, and these showed that the injury was occasioned, not by breaking and entering, but by opening a sluice in a highway and turning the waters in the ditch, of said highway upon the plaintiff’s land to his injury; Held that the allegation of breaking and entering was clearly, upon the face of the complaint, mere surplusage; and that there was -no error committed by the justice in so amending the complaint as to allow the true cause of action therein stated, only, to remain.
    An overseer of highways has no right, in, making repairs upon a highway within his district, although in other respects suitable and proper, to change a natural watercourse, or the natural course of surface water drainage, so as to cast the water upon the lands of an owner abutting upon a highway where it had not been previously accustomed to flow; or to increase, considerably, in volume and quantity, either the water in a natural watercourse, or from surface drainage, flowing upon such land, to the injury of the owner thereof.
    This results from the right of the public in a highway. It is a mere right of passage over the soil; and although the public has the right to alter, shape and fashion its roadway in such a manner as to render it convenient, safe and useful for the purposes of passage, still, adjoining and abutting lands', outside of the way, are not servient estates to this right of way, so as to authorize the public, through its officers, to change natural watercourses, or the natural course of surface waters, in regard to such lands, to the injury of the owners, with impunity. The public must construct and repair their way with reference to the rights of adjoining owners of lands.
    An overseer of highways cannot, by any act of his own, either confer any new rights upon the public, or impose any new burdens upon individuals to they: injury.
    In the discharge of his official duty as overseer, he has the right to make such change as he may deem necessary, not only by way of repair of the road, but by way of preventing further injury, provided that, in so doing, he does not interfere with the rights of others.
    He may, for this purpose, restore a highway to the condition it was in at at former period when a change was made in a ditch and sluice, and restore the public to all the rights they then had which have not become forfeited ; yet if he undertakes to restore, he should restore the way, in all respects, to the condition it was in at such former period, and the public to the rights it then had.
    He has no right to leave a sluice which would carry off water from the ditch to his own land, closed, and open a sluice which will carry the water that should f ightfully pass to his own land, upon the lands of his neighbor.
    
      PPEAL from a judgment of the county court of Onondaga county, upon a verdict of the jury, rendered on the second trial of the action. The case, as it appeared on the appeal from the judgment rendered on the first trial, is reported in 60 Barb. 388.
    A new trial having been granted, upon the former appeal, the second trial was had, before the county judge of Onondaga county, and a jury, in October, 1871. Upon said trial a map made by John D. Borden was proved to be substantially correct, and was put in evidence. It was proven that the highway indicated on said map, as leading in a northerly and southerly direction past the respective dwelling-houses of the plaintiff and defendant, had been there for sixty years before the trial. It was also proven that, at a point indicated on said map as the school-house and the defendant’s house, a highway leads east to another highway, and that the samé had been there from time immemorial, and that each of said highways was open and had been used by the public for the time aforesaid. It was further proved that the land descended from the w'est of said first mentioned highway to the southeast, and that said road was made along the side of the hill by cutting the same out, and turnpiking it up. That in time of freshet or high water, ordinary spring or fall rains, or melting of the snow, considerable water collected and ran down on the west side of said highway, and that that which found its way down on the west side of the road, passed the school-house, crossed said road at a sluice near the plaintiff’s house, and designated as the Moran sluice, and after crossing said road ran across the plaintiff’s meadow, through a depression in the land, to the southeast corner thereof, and thence across the east and west road upon the defendant’s land, across that, forming a regular channel or watercourse on the defendant’s land; that the ground at the road at the Moran sluice was from six to ten feet higher than it was at the southeast corner of the plaintiff’s meadow, and that the distance across the same was about forty rods. Evidence was given upon said trial tending to show the natural flow of waters, south and southwest of the school-house, was into and through the ravines indicated on said map, and on to the defendant’s land, except for the highway. It was also proved that in the year 1861 the trustees of the school district in which said highways were situate, (evidence was given tending to show that the same was done under the direction and with the consent of the highway authorities of said town,) put a sluice across the north and south road, at its intersection with the east and west road, and filled up the ditch on the west side of said north and south road, in front of the school-house, and it was thereafter maintained and kept' in repair by the highway authorities of said town, the effect of which was to prevent the water running down to the plaintiff’s or Moran sluice and across his meadow, and to take it down the south side of the east and west road; and that the sluice so put in as aforesaid remained there until June, 1869, when the same was filled up by the defendant, and the ditch opened by him on the west side of the north and south road communicating with Moran’s sluice, which the defendant then opened; the effect of which was to turn the water back from the east and west road, and cause it to flow down the west side of the north and south road, to the Moran sluice’. It was also proved that water running down on the south side of the east and west road had washed the same out, for the distance of fifteen rods in length, and from four to eight feet wide, and about four feet deep, and that this cutting out came within four or five feet of the traveled part of the road; that the banks were nearly perpendicular; and that at the time the defendant filled up. the sluice and turned the water to run down the west side of the north and south road, he was overseer of highways for the road district in which said highways were situate; and evidence was given tending to show that he did the same as such overseer, with the work of the district, but did the act complained of contrary to the advice and direction of the commissioners of highways of the town. It was further proved, that within a few days after the defendant turned the water as above stated, a severe storm of rain occurred, the effect of which was to cause the water flowing down on the west side of the north and south road, and through the Moran sluice, to overflow a portion of the plaintiff’s meadow, and wash away a considerable portion of the highway adjoining the same, and to choke and fill up a number of rods of under-drains upon said meadow, and to injure several tons of grass which had been cut and was lying thereon. Evidence was given by the plaintiff tending to show that for time immemorial, prior to 1860, there had been a sluice near a butternut tree across said north and south road, about thirty-six rods south of the schoolhouse, which carried the water collecting on the west side of that road, and running down in the ditch on that side south of the sluice across the highway, to the east side thereof, across defendant’s lands, through a natural depression or ravine, marked upon said map, where it found its way to the valley below; and that in 1860 one Fellows, who was then overseer of said road district, removed an embankment placed in the ditch at that point, and which turned the water into the last mentioned sluice, the effect of which was to cause the water to flow past that sluice and down the west side of the road to Moran sluice, and thence across his meadow, and that it so run at the time the trustees put the sluice across the road in front of the school-house.. Evidence was given tending to show that the butternut tree sluice was closed at the same time the one in front of the school-house was put in. It was proved that all the water on the west side of the road north of the upper sluice, and which was designated as the sluice by the butternut tree, had for time immemorial run down on the west side of the road, past the school-house to the Moran sluice, thence across the road and on to and across the plaintiff’s meadow, but not in quantity sufficient to injure the plaintiff’s land, and except on one or two occa-. sions, when the butternut tree sluice was closed, where it run after the defendant turned it from the east and west road, down to the time when the trustees of the school district put in the sluice, as hereinbefore stated, and that more water collected south of the butternut tree sluice than north of it.
    The plaintiff thereupon rested his case, and the defendant moved for a nonsuit on the ground that the complaint being in trespass, for breaking and entering the plaintiff’s close, there could be no recovery, as no breaking or entering by the defendant had been shown. The plaintiff thereupon moved to amend his complaint, by making it to conform to the evidence given, to which motion the defendant objected, on the grounds: 1st. That there was no power in the court to grant the amendment. 2d. That the effect of the proposed amendment was to change the nature of the action, and substitute a new and different action from that before the justice. The objection was overruled and the amendment allowed; to which ruling and decision the defendant excepted. ISTo amendment was in form made.
    On the part of the defendant, evidence was given tending: to show that the water collecting: on the west side of the north and south road, from above or south of the sluice by the butternut tree, had flowed down on the west side of the road, past the school house, to the plaintiff’s sluice, and thence across the highway and the meadow of the plaintiff', in the same manner as it did after the defendant turned it, as before stated, for more than twenty years before the sluice was put across the road in front of the school-house, by the trustees of the school district as aforesaid. Evidence was given tending to show that the washing away of the east and west road by the water current through the sluice put in by the trustees of the school district as aforesaid, increased from year to year by the action of the water aforesaid, but was capable of permanent repair as aforesaid. That in June, 1869, the defendant was overseer of the road district in which said highways were situate, and that to repair said east and west road, and to prevent its further washing away, and.to protect it from the action of said water, he, as such overseer, filled up the sluice put in by said school district as aforesaid across the north and south road, and opened the ditch on the west side of that road in front of the schoolhouse as aforesaid, the effect of which was to turn the water from running down the east and west road, and cause it to flow down the west side of the north and south road to the plaintiff’s sluice, and thence across his meadow to the southeast corner thereof, and from thence across the defendant’s meadow, where it had run from below the. butternut tree sluice up to the time the trustees of said school district put in said sluice, as before mentioned.
    Upon the close of the evidence, the court charged and instructed the jury as follows: “It appears from the evidence, that about the first of July, 1869, the defendant, being overseer of the road district, caused the sewer which carried the water across the Onondaga road at the schoolhouse, and thence down the east and west road, to be closed, and caused the sluice in front of the school-house to he opened, thus conducting the water that found its way into the ditch on the west side of the Onondaga road, -down through the sluice in front of the school-house, and thence to the Moran sluice and upon Mr. Moran’s land. It appears, further, that shortly after this was done there came a rain storm, and the waters collecting in that ditch flowed down upon the plaintiff’s land, in such quantity as to flood the land and do him the damage, to recover for which this action is brought. Whether the plaintiff can recover, depends upon the rightfulness of the defendant’s act in turning the water from the east and west road down this ditch, at the upper side of the Onondaga road, as before stated. It appears that for more than twenty years prior to 1861, the waters finding their way into this ditch on the upper side of the Onondaga road, below the butternut tree, passed down that ditch past the school-house to Moran’s •sluice, thence upon the plaintiff's land. That in the fall of 1861, or spring of 1862, there was a sluice constructed across the road at the school-house, which carried all the water above that point down the ditch along the east and west road, where it had flowed ever since, until it was turned by the defendant, as before stated. Inasmuch as the waters below the sluice at the butternut tree had flowed through this ditch past the school-house, and upon the plaintiff’s land, for more than twenty years'prior to the time when they were turned down the east and west road by means of the sluice across the road at the school-house, in 1861, it follows that the public had thereby acquired the right thus to flow these waters by user, and therefore the defendant would not be liable in this action if he had only turned these waters, finding their way into this ditch below the butternut tree sluice, upon the plaintiff’s land. But it is claimed by the defendant that the waters, finding their way into this ditch above this sluice above the butternut tree, had also been accustomed to flow down upon the plaintiff’s land for more than twenty years prior to 1861. Witnesses testified that they knew the sluice in childhood, saw the water running through it, but after-wards had not noticed it passing through. On the other hand, other witnesses swear this sluice was kept in operation down to the time of the construction of the schoolhouse sluice across the Onoridaga road, and the water ran on to the east side of that road through the butternut tree sluice. That is one question for you to decide, whether those waters south of the butternut tree sluice passed down the west side of the Onondaga road to the Moran sluice for twenty years or upwards. If they had not, then the public had not acquired the right to divert them. As to those waters, their diversion on the plaintiff’s land was wrongful. If you find that the waters above the butternut tree sluice were used to' flow upon the plaintiff’s land for twenty years or upwards, then that is an end of this action. If you find that the waters finding their way into the ditch above the butternut tree had not flowed there twenty years before the sluice was put in at the school-house, then the plaintiff is entitled to all the damages occasioned by them. The defendant would be liable for all the damages he has sustained, if you find that without these waters he would not have been damaged by turning the other waters.”
    The defendant, in due time, excepted to that part of¡ said charge commencing with the sentence, “If you find that the waters finding their way into the ditch above the butternut tree,” and ending with “would not have been damaged by turning the other waters.” He also, in due time, excepted to that part of said charge which reads as follows : “ That is one question for you to decide, whether these waters south of the butternut sluice passed down the west side of the Onondaga road to the Moran, sluice for twenty jears or upwards. If they did not, then the public had not acquired a right to divert .them. And as to these waters, the diversion of them on the plaintiff’s land was wrongful.”
    The defendant requested the court to charge the jury, “If the jury find that the water from below or north of the butternut tree sluice has flowed down the west side of the road in the ditch to Moran’s sluice, and across the plaintiff’s meadow in question, for more than twenty years before the sluice was put id across the north and south road, in front-of the school-house, by which it was changed to flow down the east and west road, and it was turned back by the defendant, acting as overseer of the road district, to the place where it had formerly run, in good faith, and believing that to be the best way to repair and protect the road, then he is not liable, although more water might have come down the ditch to the plaintiff’s land by reason of stopping the sluice at the butternut tree.” Which request was refused by the said court, and the defendant excepted.
    The jury, by their verdict, found for the plaintiff $51 damages. The defendant moved the court, upon the minutes, for a new trial; which motion was denied. And from the judgment rendered upon the verdict, the defendant appealed to this court.
    
      Geo. N. Kennedy, for the appellant.
    
      Geo. B. Gillespie, for the respondent.
    I. Two questions only were submitted to this court. 1st. Was there any error in allowing a proposed amendment of the complaint, not in form made ? 2d. Was there error in the charge, or in refusing the request to charge ?
    II. Upon the first question, the 5th subdivision of section 366 of the Code, in express terms, empowers the county court to allow such amendment. 1st. ‘But such amendment was not essential; for all forms of action were abolished, and the complaint contained all facts necessary to maintain the action. 2d. Quare clausum fregit was the ancient form, because our close is just as effectually broken and entered by the defendant’s agent, the element of wrongful waters, as by a crowbar or pickaxe applied to our gateway. 3d. Ho amendment was in form made.
    III. Does the office of overseer of highways confer upon the defendant, in this case, rights, powers, immunities from action, that an individual hath not? We answer not; because, 1st. The bill shows evidence, not controverted, that the defendant, as overseer, was directed by the commissioners of. highways of said town not to do the act complained of. 2d. As matter of law, “ all the powers of overseers must be taken to be subordinate to, and under the superior control of the orders of the commissioners, whom they are bound to obey.” (Bartlett v. Crozier, 17 John. 447.) (a.) This case is not reversed or criticised, but followed and approved, up to the present time, by the Court of Appeals. (See Wait's Table of Cases, p. 37.) Hence, the exceptions referred to assumed an official capacity in the defendant to do this act, which the bill concedes did not exist officially, the act being interdicted by the defendant’s superior officers. (b.) But suppose this was yet an open question, that there was conflict upon it in evidence, then the request should have been qualified by making provisions for a finding whether the act was interdicted by competent authority. Also, as to whether the act-was reasonable, necessary and not an abuse of official discretion, if not interdicted by the commissioners. For a request to charge must be in such form that the court may charge in the very terms of the request, without qualification. (Carpenter v. Stilwell, 11 N. Y. 79.) (c.) The point here made, is not that the defendant, as overseer, was “ not ' ordered,” as put in this ease in 60 Barb. 391; but that he was ordered not to do the act complained of, by -the commissioners of highways. This must surely render his attempted justification abortive.
    IV. As an officer, aside from the protest of the commissioners, he had no right to turn the waters above the butternut tree sluice, upon us., (Thompson on Highways, 152. Cook on Highways, 113. Plummer v. Sturtevant, 32 Maine, 325) Nor can the defendant excuse himself, by saying (as is contemplated by his request) that some other party had increased the flow before he did the act complained of. He cannot thus visit the sins of another upon this plaintiff. (Martin v. Riddle, 26 Penn. 415, note a.) (a.) A road must be worked so as not to obstruct the natural flow of water. (The People v. Kingman, 24 N. Y. 
      559,) (b.) Conceding that there are many cases of constructing, grading, leveling and repairing highways hy officers having lawful authority, in which an injury occurs from a reasonable exercise of such authority, which are damnum absque injuria; yet the courts draw between tho'se cases and this,' a sharp, well defined line of distinction ; and we assert that no approved case can be found in this or in any other State, or in England, which confers upon the pettiest officer of a town immunity from action, who diverts from their ancient, natural channels either surface or living waters, which have been accustomed to flow on his own land from time immemorial, and casts them upon his neighbor’s land to his damage, upon any pretext. But the converse of this has been held, in all countries, almost as long as those channels have existed.
    Y. The defendant as a private person has no such right. (Foot et al. v. Bronson et al., 4 Lans. 47.) Nor to divert waters which he has a right to turn, if commingled with waters he is not entitled to divert. (Thomas v. Kenyon, 1 Daly, 132. Bellows v. Sackett; 15 Barb. 97. Bellinger v. N. Y. C. R. R., 23 N. Y. 42. Kauffman v. Griesmer, 26 Penn. 407.) Surface water shall follow natural channels, the same as living water. (Kauffman v. Griesmer, supra. Miller v. Laubach, 47 Penn. 154.) Therefore this judgment should be affirmed, with costs.
   By the Court, Johnson, J.

There was no error in the county court in allowing the amendment, to the extent that it was allowed, as it did not change the cause of action, or alter it in any particular. True, the complaint before the justice did, in terms, charge the defendant with breaking and entering the plaintiff’s close, but the facts which constituted the real cause of action were stated, and these showed that the injury was occasioned not .by breaking and entering,.but by opening a sluice in a highway and turning the waters in the ditch of said highway upon the plaintiff’s land, to his injury. The allegation of breaking and entering was clearly, upon the face of the complaint, mere surplusage, and there was no error committed in so amending the complaint as to allow the true cause of action therein stated, only, to remain.

The cause of action was plainly what would have been, formerly known as an action on the case, and it was tried as such, and no injury was done to the defendant by the amendment.

The question at issue, and which was tried, was, whether an overseer of highways has the right, in making repairs upon a highway within his district, in other respects suitable and proper, to change a natural watercourse, or the natural course of surface water drainage, so as to cast the water upon the lands of an owner abutting upon a highway. where it had not been previously accustomed to flow; or to increase considerably in volume and quantity, either the waters in a natural watercourse, or from surface drainage, flowing upon such land, to the injury of the owner thereof. We think it clear that the overseer has no such right, and hold the law so to be. This results, we think, from the nature of the right of the public in a highway. It is a mere right of passage over the soil; and although the public has the right to alter, shape and fashion its roadway, in such a manner as to render it convenient, safe and useful for the purposes of passage, still, abutting and adjoining lands, outside of the way, are not servient estates to this right of way, so as to authorize the public, through its officers, to change natural watercourses, or the natural course of surface waters in regard to such lauds, to the injury of the owners, with impunity.

The public must construct and repair their way with reference to the rights of adjoining owners of lauds. The defendant, in his answer, justified the acts complained of upon the ground that he was overseer of the highway, and that such acts were necessary for the benefit of the highway.

The road was a north and south road, and the water flowed northward through the ditch on the west side. The evidence showed, and the court held, that in 1862 the public had acquired, by user, a prescriptive right to have the water flow through this ditch from a point as far south as a certain butternut tree, and through the sluice which the defendant opened at the time in question, upon the plaintiff’s meadow, where it flowed at the time complained of. In 1862 a change was made, by filling up the west ditch at a point between the sluice in question and the butternut tree, and another sluice made across the road at that point; which had the effect to turn all the water coming from the south to that point, down the south ditch of an east and west road, which there intersected the north and south road. The effect of this had been to make a deep gully on the south side of the east and west road, and to render the road unsafe and dangerous to travelers. To remedy this difficulty, and to prevent further injury to the east and west road, the defendant, as overseer, filled up the new sluice, cleaned out the west ditch on the north and south road, and restored it to the condition in which it was, at that place, prior to 1862. He also reopened the sluice which, it.seems, had in the mean time become filled up or closed, so that the water in the west ditch passed through' and upon the plaintiff’s land as it had prior to 1862. The court ruled and charged the jury, that if by this last change, the defendant had only restored the west ditch and the sluice- there re-opened, to the same condition in which they were prior to 1862, and no water passed through and upon the plaintiff’s land, except what came into the ditch between the sluice through which the water passed and the butternut tree, the defendant’s acts were justifiable, and the action could not be maintained.

There was evidence in the case tending to- show, that prior to the time when the new sluice was made and the water turned down the south ditch of the east and west road, there was a sluice just above and south of the butternut tree, across this north and south road, by means of which all the water coming through the west ditch, south of the butternut tree, was carried across the road, and down through a natural depression in the surface of the land, upon lands owned by the defendant; and that this sluice was filled up about the time the ditch was filled up at the intersection of the east.and west road, and the sluice there made to carry the water into the ditch of the other road, the effect of which was' to bring the water from a distance ' considerably farther south than the butternut tree, and increase the volume and quantity of water in the west ditch at the point of the intersection of the east and west road and at the sluice, by which the water was carried upon the plaintiff’s meadow. It was claimed by the plaintiff, and the evidence on his side tended to show, that it was this increased volume and quantity of water which occasioned the injury, and that but .for this increase, no injury would have happened. These facts were controverted by the defendant, who gave evidence tending to prove that, for more than twenty years prior to 1862, the water had flowed through the west ditch, the same distance, from * the south, and that no change had been made within that time, by which the quantity of water flowing through that ditch had been increased. These disputed questions the court submitted to the jury, and charged that if the water from the same distance had flowed through the ditch for twenty years, the plaintiff* could not recover; but if it had not, and the injury was occasioned by the increased volume of water from the longer distance, the plaintiff was entitled to recover such damages. The jury found in favor of the plaintiff. The defendant’s counsel excepted to this part of the charge. The charge, we think, was clearly right. The defendant, doubtless, in the discharge of his official duty as overseer, had the right to make such change as he might, in the exercise of his judgment, deem necessary, not only by way of repair of the road, but by way of preventing further injury, provided that in so doing, he did not interfere with the rights of others.

[Fourth Department, General Term, at Buffalo,

June 4, 1872.

He might, for this purpose, unquestionably restore the way as it was when the change was made in 1862, and the public to all the rights they then had which had not become forfeited. But if he undertook to restore, he should have restored the way in all respects to the condition it was'in at and prior to 1862, and the public to the rights it then had. He had no right to leave the sluice which would carry.off water from the ditch to his own land, closed, and open the sluice which would carry, the water that should rightfully pass to his own land upon the lands of his neighbor. This the jury have found he has done.

The court properly refused to charge as requested by the defendant. The substance of that request was, that the defendant had the right to make the change for the benefit of the road, if he acted in good faith, even if it had the effect to throw more water upon the plaintiff’s land than had ever been carried there before, of than would have gone there had the entire way been restored to its former condition. This proposition, as we have undertaken to show, cannot be maintained. It must be obvious to any one, that an overseer of highways cannot, by any act of his own, either confer any new rights upon the public, or impose any new burdens upon individuals to their injury. •

The judgment, we think, is right, and should be affirmed.

Johnson, Talcott and Barker, Justices.]  