
    Alfred Barkley, Appellant, v. Nelson Wilcox, Respondent.
    Depressions in the soil to which the surface water from adjacent lands naturally finds its way and is discharged into some natural outlet are not thereby made water-courses, nor does the doctrine of dominant and servient tenements apply as between them and the higher lands adjoining belonging tp other owners, so as to give the upper proprietor, the legal right as an incident of his estate to have such discharge uninterrupted.
    As a general rule the lower proprietor may lawfully, when acting in good faith and for the purpose of improving and cultivating his lands, fill them in, although by so doing he prevents the passage of the surface __water. thereon;to the injury of the upper proprietor.
    The States whose courts have adopted the contrary rule of the civil law and those which have adopted the rule above stf common law, named. i -- ’■''at of the
    The parties owned adjacent lots on a street near a v formation of the land was such that surface water f j snows would descend and accumulate in the street i¡ lot, and, in times of unusual accumulations, would j depression across defendant’s lot and other low land ant built a house on his lot, filled in the lot and gr in front of it, so as to cut off the flow of the surfa< ter there being an unusually large accumulation i upon plaintiff’s premises and into his cellar. In an ! itural melting plaintiffs jr a natural .ver. Defendip the sidewalk iter, and thereafne street, it flowed jtion to recover damages for the injuries held, that defendant was not liable.
    (Argued May 6, 1881;
    decided October 4, 1881.)
    Appeal from judgment of the General Term of the Supreme Oourt, in the second judicial department, entered upon an order made December 8, 1879, which affirmed a judgment in favor of[plaintiff^entered upon .the report of a referee, (Reported below, 19 Hun, 320.)
    This action was brought to recover, damages for injuries alleged to have been sustained by the obstruction of the natural flow of surface water from plaintiff’s lot over and across that of defendant.
    The facts are sufficiently stated in the opinion. " ■
    
      C. E. Cuddeback for appellant.
    The decision of the ref-, eree, which is here conclusive as to the fact, is really and substantially that a water-course exists, and has existed from time immemon&l. (Earl v. De Hart, 1 Beasl. 280; Angell on Watercourses, 130; Washburn on Easements and Servitudes, 284.) A land-owner cannot at his will impose an increased burden of surface water upon Ms neighbor, to such an extent as to virtually appropriate his premises Noonan v. City of Albany, 79 N. Y., 475 Byrnes v. City of Cohoes, 67 id. 204; Inman v. Tripp, 
      11 R. I. 520; Haskell v. City of New Bedford, 108 Mass. 208; Att'y-Gen. v. Leeds Corporation, L. R., 5 Ch. App. Cas. 585; Jutte v. Hughes, 67 N. Y. 268, 272; Bastable v. City of Syracuse, 72 id. 64; Ogburn v. Connor, 40 Cal. 346; Foot v. Bronson, 4 Lans. 51; Bellows v. Sackett, 15 Barb. 96; Martin v. Riddle, 26 Penn. St. 415, note; Kaufman v. Griesemer, id. 407; Butler v. Peck, 16 Ohio St. 334; Corpus Juris Civilis, book 39, titles 3, 4; Martin v. Jett, 12 La. 50, citing Code Louisiana, art. 756; Code Napoleon, art. 640; Livingston v. McDonald, 21 Iowa, 160; Gormley v. Sanford, 52 Ill. 158; Gilham v. Madison R. R. Co., 49 Ill. 484; Laumier v. Francis, 23 Mo. 181; Delahoussaye v. Judice, 13 La. Ann. 587; Hays v. Hays, 19 La. 351; Barrett v. Salisbury Mfg. Co., 43 N. H. 569; Beard v. Murphy, 37 Vt. 99; Dickinson v. Worcester, 7 Allen, 19, 22; Nevins v. Peoria, 44 Ill. 502; Miller v. Laubach, 47 Penn. St. 154; Inman v. Tripp, 11 R. I. 520; City of Aurora v. Gillett, 56 Ill. 132; Pettigrew v. Evansville, 25 Wis. 223; Ashley v. City of Port Huron, 15 A. L. J. 814.) Even if these lots were in a city or incorporated village, the rules of law would not thereby be changed. Bights of property are as sacred there as elsewhere, and equally protected by the' courts. (Earl v. De Hart, 1 Beas. 260; Jutte v. Hughes, 67 N. Y. 267; Bellows v. Sackett. 15 Barb. 96; Gormley v. Sanford, 52 Ill. 358.)
    J. M. Allerton for respondent.
    The defendant had a legal right to improve his land by filling up the low spots. (Waffle v. N. Y. C. R. R. Co., 58 Barb. 413; 53 N. Y. 11.) The obstruction of surface water, or an alteration in the flow of it, affords no cause of action in behalf of a person who may suffer loss or detriment therefrom, against one who does not act inconsistent with the due exercise of dominion over his own soil. (Gannon v. Hagadorn, 10 Allen, 106; Angell on Watercourses, 108; Wagner v. The Long Island R. R. Co., 5 T. & C. 163; Dickinson v. City of Worcester, 7 Allen, 19; Sweet v. Cutts, 50 N. H. 439; Goodale v. Tuttle, 29 N. Y. 459; Branstron v. Taylor, 11 Ex. 369; Phelps v. Nolan, 72 N. Y. 39; 
      Vanderweile v. Taylor, 65 id. 341; Radcliff, Executor, v. Mayor of Brooklyn, 4 id. 195; Lynch v. Mayor, etc., 76 id. 60.)
   Andrews, J.

This is not the case of a natural water-course. A natural water-course, is a natural stream, flowing in a defined bed or channel, .with banks and sides, having permanent sources of supply. It is not essential to constitute a water-course, that the flow should be uniform or uninterrupted. The other elements existing, a stream does not lose the character of a natural water-course, because in times of drought, the flow may be diminished, or temporarily suspended. It is sufficient if it is usually a stream of running water. (Angell on Watercourses, § 4; Luther v. The Winnisimmet Co., 9 Cush. 171.)

The parties in this case own adjacent lots on a street near a village, but not within the corporate limits. The findings are, that the natural formation of the land was such, that surface water from rains and melting snows, would descend from different directions, and accumulate in the street in front of the plaintiff’s lot, in varying quantities according to the nature of the seasons, sometimes extending quite back upon the plaintiff’s lot; that in times of unusual amount of rain, or thawing snow, such accumulations, before the grading of the defendant’s lot, were accustomed to run off over a natural depression in the surface of the land across the defendant’s lot, and thence over the lands of others, to the bTeversink river; that when the amount of water was small, it would soak away in the ground; that in 1871, the defendant built a house on his lot, and used the earth excavated in digging the cellar, to improve and better the condition of his lot, by grading and filling up the lot and sidewalk in front of it, about twelve inches, and on a subsequent occasion he filled in several inches more; that in the spring of 1875, there was an unusually large accumulation of water from melting snow and rains in front of, and about the plaintiff’s premises, so that the water ran into the cellar of his house, and occasioned serious damage; that the filling in of the defendant’s lot, had the effect to increase the accumulation of water on the plaintiff’s lot, and contributed to the injury to-his property.

There was no natural water-course over the defendant’s lot. The surface water, by reason of the natural features' of the ground, and the force of gravity, when it accumulated beyond a certainl^amount in front of the plaintiff’s lot, passed upon, and- over the lot of the defendant. The discharge was not constant, or usual, but occasional only. There was no channel or stream, in the usual sense of those terms. In an undulating country, there must always be valleys and depressions, to which water, from rains or snow, will find its way from the hill-sides, and be finally discharged into some natural outlet. But this-does not constitute such valleys or depressions, water-courses. Whether, when the premises of adjoining owners are so situated, that surface water falling upon one tenement, naturally descends to and passes over the other, the incidents of a watercourse apply to, and govern the rights of the respective parties, so that the owner of the lower tenement may not, even in good faith and for the purpose of improving or building upon his-own land, obstruct the flow of such water to the injury of the owner above, is the -question to be determined in this case. This question does not seem to have been authoritatively decided in this State. It was referred to by Denio, Ch. J., in Goodale v. Tuttle (29 N. Y. 467), where he said : “ And in respect to the running off of surface water caused by rain or snow, I know of no principle which will prevent the owner of land, from filling up the wet and marshy places on his own soil, for its amelioration and his own advantage, because his neighbor’s land is so situated, as to be incommoded by it. Such a doctrine would militate against the well-settled rule* that the owner of land has full dominion over the whole space above and below the .surface.” The case in which these observations were made, did not call for the decision of the question, but they show the opinion of a great judge, upon the point now in judgment. Similar views have been expressed in subsequent cases in this courtj although in none of them, it scorns; was the question before the court for decision. (Vanderwiele v. Taylor, 65 N. Y. 341; Lynch v. The Mayor, 76 id. 60.) The question, has been considered by courts in other States, and has been decided in different ways. In some, the doctrine < of the civil law, has been adopted as the rule of decision. By that law, the right of drainage of surface waters, as between owners of adjacent lands, of different elevations, is governed by the law of nature. The lower proprietor, is bound to receive the waters which naturally flow from the estate above, provided the industry of man, has not created or increased the servitude. (Corp. Jur. Civ. 39, tit. 3, §§ 2, 3, 4, 5; Domat [Cush, ed.], 616; Code Napoleon, art. 640; Code Louisiana, art. 656.) The courts of Pennsylvania, Illinois, California, and Louisiana, have adopted this rule, and it has been referred to with approval by the courts of Ohio, and Missouri. (Martin v. Riddle, 26 Penn. St. 415; Kauffman v. Griesemer, id. 407; Gillham v. Madison Co. R. R. Co., 49 Ill. 484; Gormley v. Sanford, 52 id. 158; Ogburn v. Connor, 46 Cal. 346; Delahoussaye v. Judice, 13 La. Ann. 587; Hays v. Hays, 19 La. 351; Butler v. Peck, 16 Ohio St. 334; Laumier v. Francis, 23 Mo. 181.) On the other hand, the courts of MassachusettSj New Jersey, New Hampshire, and Wisconsin, have rejected the doctrine of the civil law, and hold that the relation of dominant and servient tenements, does not by the common law apply between adjoining lands of different owners, so as to give the upper proprietor the legal right, as an incident of his estate, to have the surface water falling on his land,, discharged over the land of the lower proprietor, although it naturally finds its way there; and that the lower proprietor may lawfully, for the improvement of his estate and in the course of good husbandry, or to make erections thereon, fill up the low places on his land, although by so doing he obstructs, or prevents, the surface water, from passing thereon from the premises above, to the injury of the upper proprietor. (Luther v. The Winnisimmet Co., 9 Cush. 171; Parks v. Newburyport, 10 Gray, 28; Dickinson v. Worcester, 7 Allen, 19; Gannon v. Hargadon, 10 id. 106; Bowlsby v. Speer, 2 Vroom, 351; Pettigrew v. Evansville, 25 Wis. 223; Hoyt v. Hudson, 27 id. 656; Swett v. Cutts, 50 N. H. 439.) It may be observed that in Pennsylvania, house lots in towns, and cities, seem to be regarded as not subject to the rule declared in the other cases in that State, in respect to surface drainage. (Bents v. Armstrong, 8 Watts & S. 40). And in Livingston v. McDonald (21 Iowa, 160), the court, in an opinion by Dillost, J., after stating the civil law doctrine, say, that it may be doubted whether it will be adopted by the common-law. 'courts of this country, so far as to preclude the lower owner from making in good faith, improvements, which would have the effect to prevent the water of the upper estate, from flowing or passing away. Professor Washburn, states, that the "prevailing doctrineseems to be that if for the purposes of improving .and cultivating his land, a land-owner raises or fills it, so that the water which falls in rain or snow upon an adjacent owner’s land, and which formerly flowed on to the first mentioned «parcel, is prevented from so doing, to the injury of the adjacent parcel, the owner of the latter is without remedy, since the other party has done no more than he had a legal right to do. (Wash. on Easements [2d ed.], 431.)

^ Upon this state of the authorities, we are at liberty to adopt such rule on the subject, as-w.e may deem most consonant with 'the demands-óf justice, having in view on the one hand indi vidual rights, and on the other the interests of society at large. Upon- consideration of the question, we are of opinion, that the rule stated by Denio, Ch. J., in Goodale v. Tuttle, is the one .best adapted to our condition, and accords with public policy, while at the same time, it does not deprive the owner of the upper tenement, of any legal right of property. The maxim, agua currit et debet currere ut currere solebat, expresses the general law, which governs the rights of owners of property on water-courses. The owners of land on a water-course, are not owners of the water .which flows in it. But each owner is entitled by virtue of his ownership of the soil, to the reasonable use of the water as it passes his premises, for domestic and other uses, not inconsistent with a- like reasonable use of the stream, by owners above and below him. Such use is incident to his right of property in the soil. But he cannot divert, or unreasonably obstruct the passage of the water, to the injury of other proprietors. These familiar principles, are founded upon the most obvious dictates of natural justice, and public policy. The existence of streams is a permanent provision of nature, open to observation, by every purchaser of land through which they pass. The multiplied uses to which in civilized society, the water of rivers and streams is applied, and the wide injury which may result from an unreasonable interference with the order of nature, forbid an exclusive appropriation by any individual, of the water in a natural water-course, or any unreasonable interruption in the flow. It is said, that the same principle of following the order of nature, should be applied between coterminous proprietors, in determining the right of mere surface drainage. But it is to be observed, that ñ the law has always recognized a wide distinction, between r. the right of an owner, to deal with surface water falling or P collecting on his land, and his right in the water of a nat- \ ural water-course. In such water, before it leaves his land and becomes part of a definite watér-course, the owner of the land is deemed to have an absolute property, and he may appropriate it to his exclusive use, or get rid of it in any way he can, provided only that he does not cast it by drains, or ditches, upon the land of his neighbor; and he may do this, although by so doing he prevents the water reaching a natural water-course, as it formerly did, thereby occasioning injury to mill-owners, or other proprietors on the stream. So also he may by digging on his own land, intercept the percolating waters which supply his neighbor’s spring. Such consequential injury gives no right of action. (Acton v. Blundell, 12 M. & W. 324; Rawstron v. Taylor, 11 Exch. 369; Phelps v. Nowlen, 72 N. Y. 39.) How in these cases, there is an interference with natural laws. But those laws are to be construed in connection with social laws, and the laws of property. The interference in these cases with natural laws, is justified, because the general law of society is, that the owner of land has full dominion over what is above, upon or below the surface, and the owner in doing the acts supposed, is exercising merely a legal right. The owner of wet and spongy land cannot, it is true, by drains or other artificial means, collect the surface water into channels, and discharge it upon the land of his neighbor to his injury. This is alike the rule of the civil and common law. (Corp. Jur. Civ. 39, tit. 3, §§ 2, 3, 4, 5; Noonan, v. City of Albany, 79 N. Y. 475; Miller v. Laubach, 47 Penn. St. 154.) But it does not follow, we think, that the owner of land, which is so situated that the surface waters from the lands above, naturally descend upon and pass over it, may not in good faith, and for the purpose of building upon or improving his land, fill or grade it, although thereby the water is prevented from reaching,, it? and is retained upon the lands above. There is a manifest distinction between casting water upon another’s land, and preventing the flow of surface water upon your own. Society has an interest in the cultivation (and improvement of lands, and in the reclamation of waste lands. It is also for the public interest that improvements shall be made, and that towns and cities shall be built. To adopt the principle that the law of nature must be observed in respect to surface drainage, would, wq think, place undue restriction upon industry, and enterprise, and the control by an owner of his property. Of course in some cases the opposite principle, may cause injury to the upper proprietor. But the question should, we think, be determined largely upon considerations of public policy, and general utility. Which rule will on the whole, best subserve the public interests, and is most reasonable in practice? For the reasons stated, we think the rule of the civil law I "should not be adopted in this State. The case before us is an | illustration of the impolicy of following it. Several house lots, ^ (substantially village lots) are crossed by the depression. They must remain unimproved, if the right claimed by the plaintiff exists. It is better, we think, to establish a. rule which will ( permit the reclamation and improvement of low and waste j lands, to one which will impose upon them a perpetual servi- \ tude, for the purpose of drainage, for the benefit of upper proLprietors. We do not intend to say, that there may not be cases which, owing to special conditions, and circumstances, should be exceptions to the general rule declared. But this case is within it, and we think the judgment below should be affirmed.

All concur.

Judgment affirmed.  