In the first count in her writ, which has been made a part of the case, the plaintiff alleges the obstruction by the defendants of a certain drain appurtenant to her estate; in the second, the obstruction of a water-course. Upon both these claims the referee has found the fact against the plaintiff. There was no water-course, and the drain was not appurtenant to her estate. The evidence upon which these findings were made is not reported, and no question as to its sufficiency *Page 116 as matter of law is raised. Whether the plaintiff should be permitted to restate her claim by amendment is a question of fact which is not determined by this court. In the absence of such amendment, the order of judgment for the defendants, upon the findings of the referee negativing the allegations of fact upon which the plaintiff relied, was not legal error.
No amendment that could be made consonant with the facts found would avail the plaintiff. "The owner may put his land or other property to any use not unlawful which, in view of his own interest and that of all persons affected by it, is a reasonable use. For the consequence to others of such use he is not responsible. The question of reasonableness is a question of fact." Ladd v. Brick Co., 68 N.H. 185, 186. It is found that the defendants' use of their land, which is the substance of the complaint, was reasonable. If when the side track was built a drain had been put in, there would have been no trouble. Whether the defendants ought to have foreseen the injury to the plaintiff if the drain were omitted, is a question of fact considered upon the general question whether what they did was reasonable. Swett v. Cutts, 50 N.H. 439, 446.
As they could not reasonably have foreseen the injury to the plaintiff by the omission of the drain at the time of building the side track, they are not in fault. Whether after the injury to the plaintiff was demonstrated they would be in fault for maintaining the side track without a drain, if one could be constructed, is a question of reasonable use which need not be considered, as the defendants have constructed without delay claimed to be unreasonable a drain which has since carried off the water. Whether the water causing the trouble was surface water or water of underground percolation, the defendants are not liable unless they have unreasonably obstructed its course to the plaintiff's damage. Flanders v. Franklin,70 N.H. 168; Bassett v. Company, 43 N.H. 569, 573.
Exception overruled.
WALKER, J., did not sit: the others concurred. *Page 117