
    (Greene County Common Pleas.)
    GEORGE DILL v. DANIEL H. OGLES-BEE.
    The owner of an upper parcel of land has a natural easement upon a lower adjacent parcel to the extent of the natural flow of the surface water from the upper to and upon the lower, and may for the benefit he may derive from use for agricultural purposes accelerate the flow of such surface water by artifical drains.
   SMITH, J.

This action is brought to enjoin defendant from flowing surface water upon the land of plaintiff. Plaintiff is the owner of the lower parcel of land lying east, and defendant of the upper parcel lying-west of a public highway or turnpike. In the highway and on the west side thereof, is an open ditch, into which surface water from the east side of defendant’s field adjoining the highway is collected, and flows for several hundred feet north to a culvert, thence east through the culvert to the east side of the highway, thence through .a tile ditch over plaintiffs lands to a stream. The culvert ditch and turnpike were constructed more than thirty years ago. Prior to that time the culvert in the highway was a few hundred feet south of the point where it now is and through which surface water from the east side of defendant’s field.was discharged upon plaintiff’s land.

Defendant has constructed a tile ditch along the east side of said field from the north end thereof running parallel with said highway and about two hundred feet therefrom, but approaching said highway at a point opposite said culvert and about ninety feet therefrom where it makes an elbow and empties into said highway or turnpike ditch. From the elbow of the main ditch a spur ditch extends in a northwesterly direction to the rim of a small basin or depression. The water collected in this basin or depression does not naturally flow toward said highway. Along the line of the main ditch are two other spur ditches extending in a westerly direction, but not beyond the point in said field where the surface slopes toward said highway. The soil in said field is a damp clay, and prior to the construction of said ditch could not be used advantageously for the purpose of raising annual crops. Plaintiff for some time prior to the commencement of this action bad not permitted the free flow of the water collected at the east end of said culvert, and defendant by his cross petition-claims damages by reason thereof.

Plaintiff seeks to recover damages from defendant by reason of the discharge of water from said ditch upon his land.

Defendant constructed said ditch for the purpose of cultivating the east side of said field and raising annual crops.

It is well settled in Ohio, that the owner of an upper parcel of land has a natural easement in a lower adjacent parcel to the extent of the natural flow of the surface water from the upper to and upon the lower. The rule of the civil law prevails and the owner of the lower tract can not divert the water which flows from the higher, but must submit to the conditions imposed by nature. Butler v. Peck, 16 Ohio St., 334 (343); Tootles v. Clifton, 22 Ohio St., 247 (253); Crawford v. Rambo, 44 Ohio St., 279 (283); Blue v. Wentz, 54 Ohio St., 247.

It is claimed that the owner of the upper parcel may for the benefit he may derive for use for agricultural purposes accelerate the flow of surface water upon the lower by artificial drains.

In Butler v. Peck, 16 Ohio St., 343, the court held that the owner of an upper areel cannot rightfully, by an artificial rain, conduct the water that has no natural outlet from a basin so as to cause it to flow upon the lower parcel of land.

But, the court expressly disclaims passing upon the rights of the upper-parcel as to surface waters that naturally flow upon the lower parcel of land.

It appears from the evidence that the surface water will not rapidly percolate into and through the soil m defendant’s field. It is a damp clay soil, no gravelly subsoil, no underground springs — the-water discharged by the tile ditch is certainly surface water. It does not cease-to be surface water because collected in an underground ditch. Frazier v. Brown, 12 Ohio St., 294 (302); WTieatly v. Baughn, 25 Pa. St., 528 (532); Van Nest v. Fleming, 79 Iowa, 641-2.

The fact that some of the water discharged by the tile ditch might by evaporation upon the surface or by percolation into the soil never reach the culvert in the absence of said ditch ought not to affect the right of defendant to drain his land in a reasonable manner for the purposes of agriculture.

Defendant had the right to the usé of the easement to discharge the surface water at the mouth of the culvert and cause said water to flow upon and over plaintiff’s lands.

He had the right to collect said .water into an artificial drain and accelerate the flow to said culvert, thence upon plaintiff’s lands. McBride v. Akron, 12 C. C. R., 610; Sheldon v. Cole, 2 Ohio Nisi Prius, 307; Pond v. Herrington, 109 Ill., 611; Martin v. Riddle, 26 Pa. St., 415; Meixell v. Morgan, 149 Pa. St., 415; Wharton v. Stevens, 84 Iowa, 107; Van Nest v. Fleming, 79 Iowa, 638; Hughes v. Anderson, 68 Ala, 280 (44 Am. Rep., 147); McCormack v. Huran, 81 N. Y., 86.

The only limitation upon the right to-collect surface water by artificial means, and discharge it upon the lower parcel in states which have adopted the civil law rule is that the owner of the upper-parcel cannot create new and different, channels and cause the water to flow upon the lower parcel at new and different points than where it flowed before. This, defendant has not attempted to do, for the water was only collected and discharged at; a point near the culvert through which it had flowed for more-than thirty years. If defendant is only conducting water to the culvert by means of the tile ditch that naturally flowed to that point and has only increased the flow fbr a short space of time-by accelerating its discharge from his-, land, he is not liable to plaintiff. But, defendant has no right to discharge water from the basin or depression in the northwest corner of his field, notwithstanding the fact that when the water overflows the rim of the basin it naturally flows to the culvert. It is evident that the spur ditch running northwest from the elbow of the main ditch does conduct some water from the basin that would not otherwise flow to the culvert and to that extent defendant is maintaining a drain without lawful right (Butler v. Peck, supra).

T. E. Scroggy, for plaintiff.

T. L. Magruder and M. J. Hartley, for defendant.

It is speculation for the most part as to the distance a tile ditch will drain-being greater in some soils than others. The evidence tends to prove that the tile ditch in defendant’s field will not drain more than £0 feet.

The defendant is therefore enjoined from maintaining the spur ditch within 59 feet of the basin. This disposes of defendant’s claim for damages, because he has been discharging some water through the culvert that did not naturally flow there. The evidence shows that plaintiff has prevented the free flow of the water from the east side of the culvert. Plaintiff is bound to permit the free flow of the water from the culvert over his land with the exception hereinbefore stated, and the exception covers but a very-small portion of the water collected there. Because a small quantity of water is discharged at the culvert that defendant is not entitled to flow over the plaintiff’s lands is no excuse for the plaintiff’s failure to provide for the free flow of the other surface water. Plaintiff has acted upon the assumption that he was not bound to receive any of the water discharged by defendant’s ditch. He was bound to receive the greater portion of it. Having interfered with and obstructed the free flow of the water he is not in a position to claim damages. But the evidence does not show that he has suffered damage.

The claims of both parties to damages are disallowed. Both being in fault, there should be no recovery of costs. Plaintiff is enjoined from obstructing the free flow of said water from the east side of said culvert over his lands. Defendant is enjoined from maintaining the spur ditch to the extent above indicated.  