
    NAGY v. CITY OF AKRON.
    Ohio Appeals, 9th Dist., Summit Co.
    No. 1296½.
    Decided Dec. 23, 1927.
    First Publication of this Opinion.
    Syllabus by the Court.
    1261. WATER AND WATER COURSES— 799. Municipalities — A municipality may not collect surface water into a main storm water sewer and empty it into a water course which does not enter, pass through or border on the corporate limits of such municipality, even though such water course naturally drains the area within such municipality from which the surface water is collected, without liability for damage to land along such water course, caused by the overflow of water from such water course by reason of the increased amount and accelerated flow of the water from such sewer.
    Error to Common Pleas.
    Judgment reversed.
    Lahrmer & Handle, Akron, for Nagy.
    Wm. H. Knowlton, Dir. of Law and F. E. Renkert, Asst. Dir. of Law, Akron, for City of Akron.'
    STATEMENT OF FACTS.'
    Plaintiff in error commenced his action, in the Common Pleas, against the City of Akron, to recover damages on two causes of action; first, for alleged damages resulting from the emptying of a sanitary sewer into a county ditch running through the north side of' his land; and second, for damages to his crops for three successive' years, caused by water overflowing his land, alleged to be the result of the city emptying a storm sewer into a county ditch which passed through the central part of,his land.
    After the jury had been impaneled, statements of counsel made, and the first witness called and testified in part, a question arose concerning the admission of evidence which involved the construction of what the petition alleged concerning the area drained and the quantity of water coming into said ditch through said storm sewer. At this time counsel for plaintiff stated in open court that it was not claimed that the city had enlarged the drainage area that emptied into said county ditch through said storm water sewer, but did claim that the sewer brought more water than would have come under natural circumstances; that it came much faster and quicker than it naturally would have come and thereby overflowed the county ditch and destroyed plaintiff’s crops, which the water did not do prior to the construction of saic sewer.
    
      Thereupon counsel for the city demurred to the alleged second cause of action in the petition, on the ground that it did not state a cause of action, and asked the court to refuse to hear any further evidence on the second cause of action, it being the contention of counsel for the city that as long as the drainage area was not increased, the fact that the flow of water was increased and the. volume increased due to improvement, it is not liable for the damage caused to Mr. Nagy.
    The court sustained this demurrer. Plaintiff not wishing to plead further, judgment was rendered in favor of the city on the demurrer to the second cause of action.
   OPINION OP COURT.

The following is taken, verbatim, from, the opinion.

PUNK, J.

The case is here on petition in error claiming that the court erred in sustaining the demurrer to the second cause of action.

The question presented is whether or not a municipality may collect its surface, water into a trunk line sewer and empty it into a nat-uial water course on the lower lands of another outside its corporate limits, which water course naturally drains the higher land of the municipality but does not extend into, through or border on it, without regard to the capacity of the water course, as lon<r as the draining area is not increased; it being conceded, so far as this record is concerned, that the nearest point of the Roush lateral to the corporate limits of said city is about 1,000 feet.

The rule is well established in Ohio that the owner of land cannot, by artificial means, divert the natural flow of the surface water off his land, nor can he, by any embankment or otherwise, diveit the natural flow of the surface water off the higher land in a manner different from its natural flow onto his land, without liability therefor. Butler v. Peck, 16 OS. 334; Tootle v. Clifton, 22 OS. 247.

Where a water course or well-defined channel or natural depression exists on the land of the upper proprieter, he may collect the surface water on his land into sewers or drains and discharge it, without liability, into such water course or natural channel or depression on his own land; but if theie is no such water course or natural channel or depression on his land, he cannot so collect the surface water or divert its natural flow onto the land of the lower owner. 27 R. C. L. pg. 1151, sec. 79 et seq.

The case of Mason v. Commissioners, 80 OS. 151, is cited by counsel on both sides in support of their respective positions. It will be observed that this syllabus limits the right to drain surface water to “in the reasonable use of his land, * * * into its natural outlet, a water course, upon his own land.”

It being clear that an individual cannot, by artificial means, divert surface water, either from coming on or going off his land, from the natural flow thereof, is the rule any different as to a municipality, as between it and ■the owner of land located outside such municipality ?

We are therefore unanimously of the opinion that the court eired in sustaining the demurrer to the second cause of action.

(Washburn, PJ. and Pardee, J., concur.)  