
    John M. Worth, Plaintiff, v. Town of Salamanca and Frank Holdridge, Defendants.
    (Supreme Court, Cattaraugus Equity Term,
    June, 1911.)
    Waters and watercourses — Natural watercourses: Property right in
    streams — Acquisition by prescription: Diversion of streams — Duties on change of channel.
    Though highway commissioners may not divert the flow of water in a natural stream to the lands of an abutting owner, where the latter has diverted the flow of the stream to another point on Ms lands, the commissioners are not bound to take care of the water so diverted; nor can the abutting owner by continuing such diversion for forty years acquire a prescriptive right to have the water thus diverted taken care of.
    Action to restrain defendants from maintaining a sluice or waterway under a highway and for damages.
    Carey D. Davie, for plaintiff.
    George W. Cole and Whipple & Whipple, for defendants.
   Brown, J.

The natural drainage for the surface water from the easterly end of the plaintiff’s farm is through a slight depression or valley extending from near the northeastern corner of his meadow in a southwesterly direction under the tracks of the trolley car line onto the Harrington' farm, reaching the right of way of the Erie railroad about twelve rods south of plaintiff’s southerly line, passing through an opening in the Erie railroad and reaching the Little Valley creek. About forty years ago the plaintiff dammed up this natural surface watercourse at a point near the northeast corner of his meadow and turned the water, by means of plowing one or more furrows, in a westerly direction to the highway at a point where formerly was located a sluiceway, permitting the water to flow through this sluice and into the easterly end of a natural depression or ravine extending west of the highway to the Erie railroad. At about the same time this last mentioned sluice in the highway was stopped up and abandoned, and a ditch was constructed on the east side of the traveled portion of the highway from such old sluice southerly to sluice located twelve rods south of the plaintiff’s south line; for about forty years the surface water has drained from the north half of plaintiff’s meadow and pasture through the course established by the plowed furrows to the highway, and thence south through the ditch on the east side of the highway. The defendant Holdridge, under the direction of the county superintendent of highways and of the town board of the town of Salamanca, in January, 1910, placed a two-foot iron pipe across the traveled portion of the highway, at the point where the furrowed watercourse from the east intersected the highway, and closed the ditch extending south from that point. The result of placing such pipe across the highway and closing the north end of such ditch is that all the surface water from the north half of plaintiff’s meadow and pasture passes through such Iron pipe and flows westerly therefrom down a natural grade or decline through plaintiff’s garden to the Erie railroad, where it enters the railroad ditch and passes off to the Little Valley creek. In passing through plaintiff’s garden, such surface water has cut a channel varying in width and depth, causing the injury of which plaintiff complains. To restrain the maintenance of such iron pipe opening and to compel defendants to open the ditch on the east of such highway, the plaintiff brings this action.

If turning the surface water from its original and well-defined course near the northeast corner of plaintiff’s meadow and running the same westerly to the highway, and thence southerly through this ditch, more than forty years ago, made this new course a natural watercourse, then it necessarily follows that the defendants had no right to place such iron pipe in the highway and alter such course so. as to turn the surface water onto plaintiff’s garden. Such act would constitute a diversion of a natural stream or watercourse by defendants and render them liable. The fact is, howevér, that the watercourse established by plaintiff forty years ago is not a natural watercourse; it is an artificial channel made by plaintiff, and drained his meadow and pasture onto the highway. The existence of a ditch on the east side of the highway for that length of time does not make that artificial channel a natural watercourse. The running of the surface water through the plaintiff’s artificial channel to the highway, and thence south through an artificial ditch alongside of the highway, for any length of time, cannot make this surface water stream a natural stream or watercourse so as to prevent the proper authorities from interfering with it within the limits of the highway. The plaintiff in no sense became a riparian owner so as to be' entitled to the flow of water through the highway ditch. The defendants have not diverted the flow of water from a natural stream onto plaintiff’s garden. The plaintiff, by turning the surface watercourse forty years ago from his meadow onto the highway, could not' acquire a prescriptive right as against the town of Salamanca to take care of such water by a -ditch on the east side of the highway. The existence of the water on plaintiff’s garden is due solely to the fact that the defendants have placed a pipe in the highway which allows the water that plaintiff turns into the highway to flow where it naturally would if no highway were intersected by it.

The plaintiff’s complaint must be dismissed. Let findings be prepared.

Complaint dismissed.  