The case of Lampman v. Milks (21 N. Y., 505) disposes of the merits of this case. It was held in that case that when the owner of land has by any artificial arrangement effected an advantage for one portion to the burdening of the other, upon a severance of the ownership the holders of the two portions take them respectively charged with the servitude, and entitled to the benefit openly and visibly attached at the time of the conveyance of the portion first granted. In that case, as in this, the owner of the land had diverted a stream of water through an artificial channel, so as to relieve a portion of it formerly overflowed, which he then conveyed. It wras held that neither such owner nor his grantees of the residue could return the stream to its natural channel to the damage of the first grantee.
This case establishes the right of the plaintiff to have the water flow in the ditch and to have the ditch kept in the condition it was at the time of the grant. But it does not hold (as the question was not in the case) that plaintiff might enter on defendant’s premises and repair the ditch. That precisé point was decided by the Supreme Court of Massachusetts in Thayer v. Payne (2 Cush., 327).
In that case a drain from defendant’s cellar extended on to plaintiff’s land when the latter conveyed the house, &c., to the defendant. The drain becoming obstructed, defendant entered to repair it, and plaintiff sued in trespass for the unlawful entry. The court held the entry lawful.
The plaintiff could not make the burden imposed by the ditch any greater than it was at the time of the conveyance to the parties. At that time the judge finds that the ditch *58was about five feet wide and of a depth of from one to six feet.
After the flood of 1868, which swept away the banks of the ditch, plaintiff, with the consent and assistance of defendant, put stakes into the bank and nailed planks to them in order to prevent the escape of water from the ditch. It is not found whether the planking and other erections put up since 1868 had the effect to increase the flow of water on to defendant’s land.
If they did, the defendant had the right to remove them. Unless this fact is found affirmatively, we must assume that the erections of the plaintiff did not increase the flow on to defendant’s land, especially as he aided in and consented to the putting in plank, &e., which he subsequently removed, and of which he now complains.
No stress is to be laid on the consent and aid given by defendant to putting plank, &c., by the plaintiff as being a license so to do and binding upon him as such. As a mere license it was revocable, and when revoked the rights acquired by plaintiff under it terminated.
But the consent and assistance of defendant are evidence that the erections of the plaintiff were not any more injurious to him than the ditch was at the time of the grant, and if not he had no right to destroy them.
The increase of the height of the planking does not necessarily increase the flow of the water on the defendant’s land, as that result may be counteracted by the lowering of the bank at other points. If such was the necessary effect of it, it should have been proved, and the court should have been called upon to so find.
We cannot assume that the planking produced any additional injury to the defendant. The judgment should be affirmed.
Judgment affirmed.