
    John Tootle v. Daniel Clifton.
    The erection of an enbankment upon one’s own land, whereby the surface water on the adjoining land of another is prevented from flowing in its natural course, and caused to flow off in a different direction over the land of the latter, is a nuisance for which an action may be maintained without showing any actual damage, and for which nominal damages, at least, may be recovered.
    Title by prescription may be acquired by twenty-one years’ adverse enjoyment of an easement, and the period begins to run from the time the right of action accrues.
    Whore the only issue in a cause is upon the truth of- immaterial matter, it is not error in the court to render judgment upon the pleadings, irrespective of the verdict of the jury.
    Error to the District Court of Ross county.
    The original action was brought by Clifton against Tootle, charging that Tootle had wrongfully entered upon the lands of Clifton and cut divers ditches, thereby causing the surface water to flow from the. adjoining lands of Tootle upon and over the land of Clifton.
    The defense set up was, that the natural flow of the water was from Tootle’s land upon and over the land of Clifton, and that the channels or places where it so naturally flowed having become obstructed, Tootle entered upon Clifton’s land and removed the obstruction, by plowing furrows, etc., which was the alleged trespass.
    On the trial in the Common Pleas there was evidence tending to prove the said matters alleged as defense, and also tending to show that the alleged obstruction was a ridge, or raised, slip of ground, on plaintiff’s land, near the division line between the two farms, occasioned by’ the plaintiff’s ordinary plowing and tillage of his land, and that the obstruction had remained there, preventing the flow of the water as aforesaid, for thirty or forty years prior to its abatement by the defendant. The court thereupon instructed the jury, among other things, as follows:
    “If the jury find from the evidence that the natural flow of the water was from and off the land of defendant, and into and upon the land of plaintiff, and that said flow has been obstructed by an elevation on plaintiff’s land, which caused it to flow off in a different direction over the land of defendant, which elevation was made by the ordinary cultivation of plaintiff’s land, the defendant had a right peaceably to enter upon the land of plaintiff, and remove the obstruction by digging down said elevation to a level with the natural surface of the earth, unless said elevation had existed, so as to prevent the flow of the water from defendant’s land into and upon the land of the plaintiff, continuously from year to year for a period of twenty-one years prior to the injury complained of, in which latter case the defendant would have no right to enter upon the land of the plaintiff for the purpose of removing said obstruction.”
    The defendant excepted to this charge, and asked the court to charge the j ury: “ That plaintiff could not gain a right by prescription to keep up and maintain said elevatiou, unless the jury are satisfied from the evidence that said elevation had existed for twenty-one years, and had for that period obstructed the flow of the waters from defendant’s land in such a manner a3 to injure the defendant.” This instruction the court refused to give, and the defendant excepted to the order of refusal.
    A verdict having been found for the plaintiff (Clifton), and judgment entered thereon, Tootle prosecuted his petition in error in the District Court, where the judgment was affirmed, and. he now seeks to reverse the judgment of the District Court.
    
      L. T. Neal, and Vanmeter ^ Yaple, for plaintiff in error:
    1. To constitute an adverse enjoyment of an incorporeal hereditament, the act of enjoyment must be of such a character as to afford ground for an action by the other party against whom the claim is made. 2 Greenl. Ev. 482, par. 539a (Redfield’s ed.), also note 2; Pierre v. Fernald, 13 Shepley, 436; Ang. on Water-courses, 6 ed. 384, par. 219a, 219b, 219c, note 4; Pratt v. Lamson, 2 Allen, 275, 288, 289; Holsman v. Burning Spring Bleaching Co., 1 McCarter (N. J.), 335; Crosby v. Bessey, 49 Maine, 539; Washb. Easements and Servitudes, 140, sec. 49, 2 ed., marg. p. 100, also 128, marg. p. 90.
    2. ' No action will lie against a party for an act lawful in itself and done upon his own premises, unless that act produces some actual, substantial injury to another; an injury which will give the other a right of action. Cooper v. Hall, 5 Ohio, 321; McElroy v. Goble, 6 Ohio St. 187; Columbus Gaslight and Coke Co. v. Freeland, 12 Ohio St. 400.
    We may claim, then, upon authority that the time at which a person begins to acquire a prescriptive right to an easement or servitude, is the time at which his acts of enjoyment become such as give to the party, against lohom the claim is made, a right of action. There was no servitude upon the land of the defendant below, and no easement in the land of the plaintiff, until there was something enjoyed by plaintiff that occasioned injury to defendant. A servitude is defined (Washb. Easements and Servitudes, 5) to be “a right whereby one thing is subject to another thing, . . . for use or convenience, contrary to common right.” There was no burden imposed upon the land of the defendant below by the elevation, until its existence injured him. The injury to defendant was the only burden. And this is the substance of charge asked for by defendant below.
    
      The whole subject is.fully considered by-Bronson, J., in Parker & Edgarton v. Foote, 19 Wend. 809.
    
      Thaddeus A.,Minshall, for defendant in error:
    Before considering the question of law that is presented by the bill of exceptions, we ask the court to consider the nature of the charge asked by the defendant. How would the phraseology, “in such a manner as to injure the defendant,” have been understood by the jury? A jury can not be supposed acquainted with the ideal injury the law presumes to flow from the simple invasion of a man’s rights, and for which it awards nominal damages, though no actual damages are in fact sustained. The charge must, therefore, be construed as it would have been understood by the jury; that is, as tantamount to actual, or substantial, or material injury to the defendant.
    What, then, was the substance of the charge? It recognized the right of the defendant to enter upon the premises of Clifton any time within twenty-one years from the time the natural flow of the water was diverted, as claimed by him, and to remove the obstructions by digging down the elevation; but denied him the right to do so after the elevation had so continued with his permission to divert the natural flow for more than twenty-one years.
    If the natural flow of the water was- from the premises of Tootle to aud upou the premises of Clifton, then the former had originally a natural easement, as it is termed by some authors, incident to his premises, in the premises of the latter, growing out of the relative situation of the two tracts. Washb. on Easements, 19; Butler v. Peck, 16 Ohio St. 342.
    The general rule being that every invasion of a private right, whether of-person or of property, is an injury for which an action may be maintained to recover damages; for every injury imports a damage; and the law, wherein there has been an invasion of a private right, will, in accordance with Us favorite maxim, ubi jus, ibi remedium, give an action for the assertion of this right; though the damages awarded may only be nominal, and that the continuance of the thing complained of may'not ripen into an adverse right by lapse of time. The maxim, damnum absque injuria, has no application to such cases, as it applies to the instances only in which damages are incurred from some act which the law deems no injury. There being no invasion of a right, there can be no legal injury, and consequently no damage. Eor a like reason, the maxim, de minimis non curat lex, has no application where there has been an invasion of a private right, for it is the right which the law regards more than the recompense which it undertakes to make; hence the many instances in which nominal damages only are awarded in order to maintain the right.
    These views are fully sustained by authority. Ashby v. White, 1 Smith’s Lead. Cas. 105; Hunt v. Denman, 2 Cro. 478; also, notes in Smith’s Lead. Cas. 360, 364, 368, 370; Pryce v. Belcher, 3 C. B. 58; 4 C. B. 866; Fay v. Prentice, 1 C. B. 828; Story v. Hammond, 4 Ohio, 376; 1 Hil. Torts, 74, par. 6, and notes a and b; 1 Sedg. Dam. 45-47, and notes; Washb. on Easm. 680 (229 marg.) and notes; Webb v. Portland, 3 Sumn. 189. Also see cases cited in 1 Sedg. on Dam. 45, note 2; also the Tunbridge Wells Dippers, 2 Wils. 414 (a. d. 1769); Wells v. Watting, 2 Blk. 1233; Washb. on Easm. 659; Ib. 295 (2 ed., top paging); Northam v. Hurley, 72 Eng. Com. Law, 663.
    The fact that the elevations were caused by the ordinary cultivation of Clifton’s land, could make no difference; for C. was bound, in the ordinary cultivation of his land, to observe the legal duty imposed by the maxim, sic utere tuo, ut alienum non laedas.
    
    Thus Washburn says : “ It is not necessary to show that the act, which forms the basis of the prescription, did any damage to the party against whom it is claimed, provided it was an invasion of his right.” Washb. on Easm., marg. 90, par. 30, 31; Starke’s Lessee v. Smith, 5 Ohio, 456.
    But it is claimed that Cooper v. Hall, 5 Ohio, 321, and 
      McElroy v. Goble, 6 Ohio St. 187, establish a different rule in this state; and that no action can be maintained in Ohio, where there is not actual damage; and consequently that a prescriptive right to an easement can not be claimed where the subject of the easement causes no actual damages to the owner of the servient tenement. But we contend that these cases in no way infringe the integrity of the general rule, governing the maintenance of an action, upon the infringement of a private right. They are cases resting upon special circumstances, and must be confined within the limits of the ground upon which they are placed.
    The decision in both of these cases is placed upon the ground that streams of water are intended for the use and comfort of man, and are, to some extent, publici juris; and that it would be unreasonable and contrary to the universal sense of mankind, to debar every riparian proprietor from the application of the water to domestic, agricultural, and manufacturing purposes, provided the water is so used and applied as to work no material injury or annoyance to a neighbor.
    There is, between the defense set up by the defendant in his answer and the question presented by his bill of exceptions, a most glaring inconsistency. The defense was, that in the exercise of the private right to abate a nuisance to his property, he, Tootle, entered on the lands of Clifton and cut the ditches; but when it appeared that what ho complained of as a nuisance had continued for thirty or forty years, he then called on the opposite party to show, what he in his defense had affirmed. Tu other words, he would be heard to say that, for the purpose of his defense in entering to abate them, the embankments worked injury to his premises; but for the purpose of defeating the easement claimed by Clifton, he would be heard to say, that they did not work injury to his premises.
   Welch, C. J.

It is not denied that the period of prescription, in cases of easements and incorporeal rights is twenty-one years in Ohio; and it is admitted that the period begins to run when a right of action accrues. The single question argued is, whether, in a case like the present, as hypothetically put by the court in its charge, there is a right of action. In other words, the question is, whether the erection of an embankment upon one’s own lane], whereby the surface water accumulating on the land of another is prevented from flowing off in its natural courses, and caused to flow off in a different direction over his land, is an act for which the latter may sustain an action, without showing any actual injury or damage. We answer the question in the affirmative. The act is wrongful. It is an invasion of the plaintiff’s right — the right to manage his own farm according to his own notions of fitness and enjoyment, and therefore the law presumes a damage, although it be merely nominal or ideal. To aver the fact of the wrongful structure, and its effect in preventing the natural flow of the water, is in law to aver that the owner of the land so affected thereby was injured. This is the general law applicable to cases of nuisance. Wherever one’s right is actually invaded, he has his remedy, irrespective of the amount or actuality of the damage. The cases of Cooper v. Hall, 5 Ohio, 320; McElroy v. Goble, 6 Ohio St. 187, and Columbus Gaslight and Coke Co. v. Freeland, 12 Id. 392, cited by counsel, are exceptional cases, standing on peculiar grounds. The two former are cases of the deepening of waters in streams by mill-dams, and are expressly put by the court upon the ground that the streams, for special reasons stated, are to be considered in some respects publici juris. The latter case, and other like cases, of nuisance by corrupting the air, or water in running streams, also stand ou peculiar grounds. Every one has a right, to a certain extent or degree, to corrupt these elements. As a matter of necessity, some rule of measurement must be adopted, whereby it can be determined when that right has been exceeded, and the act becomes wrongful. The rule adopted by the law is, that when it becomes actually injurious, or is of a nature necessarily calculated to produce actual injury, it is wrongful. It is a rule of necessity, and does not exist outside of that class of cases. No such necessity exists in a case like the present. Every act of preventing the water flowing from another’s land in its natural channels, and causing it to flow over his land, without his consent, is au invasion of his rights, and therefore actionable. I have the right to send the smoke of my chimney into the common air, or to throw the debris from my place of business into the running stream, provided no one is actually annoyed or damaged thereby, but I have no right to pen up the water on another’s farm, and then plead that I have done him a benefit instead of an injury. I can not be allowed thus to manage both farms according to my notions of profit and enjoyment, in disregard of the wishes of the owner. The act of flooding my neighbor’s farm, by penning up the waters upon its surface, is wrongful per se, and in its inception, and not wrongful merely because it affects him in a particular manner, or to a certain extent.

But even if we admit the law to be as claimed by the plaintiff in error, I can not see on what ground we can reverse this judgment. If it be necessary, in order to maintain an action in such a case, to aver and show some actual injury, then no valid defense was set up by him in the original case, and the judgment was rightfully rendered against him. By his answer he admits the abatement of the nuisance, and seeks to justify the act on the simple ground that the obstruction prevented the flow of the water, without alleging any injury or damage as the consequence. He will surely not claim that, if there was no right of action, there was any right to abate the nuisance. Therefore, if he was right in his assumption of the law, in his motion to instruct the jury, the plaintiff below was entitled to a judgment irrespective of any verdict the jury might render. There never was any right of action for the obstruction, and therefore could'he no right to abate the same.

Judgment affirmed. .  