■ "We think the judge properly refused to receive evidence of the acts of the plaintiff’s son, until some proof had been given that the son acted by the plaintiff’s authority.
The defendant excepted to the charge, that the defendant, having assumed to build the race, and to construct it entirely himself, could not allow it to fall into dilapidation, and then claim that the plaintiff was without remedy, and that there is no omission of duty on the part of the plaintiff which constitutes a defence in this respect.
The deed from Anthony to Smith, under whom the plaintiff claims, contained a reservation of' a right to carry water across *498the lot by a culvert, of which Smith was to build one-half. The culvert was to extend to within fifty feet of the north line of the lot. The water for that fifty feet was to be conveyed in an open race, each party to build one-half thereof. The complaint alleges that the defendant has suffered this conduit, or race-way, to leak and be out of repair. It appears that, after the plaintiff went into possession, the defendant made another race-way, about fourteen inches square, closed, and put it inside of the open race-way and covered it with earth.
The plaintiff argues, that the closed race-way burst with the pressure and frost, and caused the leaking. This explains the charge of the learned justice that, as the'defendant assumed to build, not an open but a closed race-way, for his own benefit, he was not justified in allowing it to fall into dilapidation, and thep. to claim that the plaintiff was without remedy.
The defendant’s counsel, however, insists that,- by the deed of Fritcher to Anthony, Anthony is to make good all the leaky pipes, after reasonable notice, and that if he neglect, Fritcher shall do this at his expense. But an examination of that deed shows that that agreement refers to certain pipes of cement, metal or wood, which it was thereby provided that Anthony might lay down. Connected with these pipes, a bulk-head might be erected and a hydraulic ram set tip. And while it is not easy to understand, from the printed case, the exact bearings of all these privileges, yet it seems plain that the complaint does not allege any imperfection in the pipes, but only in the race-way. And it does not seem that the agreement in the deed of Fritcher to Anthony respecting the pipes was intended to change the arrangement in the deed of Anthony to Smith, respecting the race-way and the repair thereof by the parties in common.
The learned justice further charged that, by the deed of Fritcher to Anthouy, the plaintiff might repair the bulk-head, and charge half the expense to the defendant; that that was a cumulative remedy, and that it did not follow that, because he did not make the repairs, he is not entitled to recover damages in this action.. To the charge that this was a cumulative remedy the defendant excepted.
The plaintiff’s counsel insists that this was a misapprehension *499of the learned justice, and that the deed contained no such provision ; and also that the deed of Anthony to Smith contained no provision as to the bulk-head, but only as to the race-way. It seems, that the bulk-head is not expressly mentioned in the first deed. In the second it is mentioned, but no express statement is made as to its repair. Whether or not it is included in the term “ race-way,” or in the term “ pipes,” we ne.ed not now examine. The plaintiff was satisfied with the change, as it stated that the right to repair and charge one-half to the defendant was only a cumulative remedy.
The question presented then is this : Assuming, for the present, that the bulk-head is included in the race-way, and that the learned justice intended to refer to the first instead of the second deed, is the agreement that each party shall build one-half of the opon race-way cumulative, so that the defendant may yet be liable for damages occasioned by leaking.
Now, it is to be noticed that this privilege of taking the water across the plaintiff's land is for the defendant’s benefit. And there is no reason why he should not be liable, if he has, in the language of the learned justice, unjustifiably omitted to keep the structure in good repair. We do not see that a right to call on the plaintiff to pay half the expense of repair relieves the defendant from the obligation so carefully stated in the language of the charge.
The defendant had, by these' deeds, an easement, or servitude, over the plaintiff’s land. And the general rule as to servitudes is that there is no obligation on the owner of the servient property to do any act, but only to allow another to do some act, or to refrain from doing some act himself. (Dig., 8, 1, 15, 1.) Upon general principles, therefore, it would not be the duty of the plaintiff to construct the race-way, or the bulk-head, or pipes. And if, by the term of. the deed, the plaintiff is to build half the race-way, or is allowed to repair the pipes, at the defendant’s cost if they leak, still we must construe these provisions as not taking away the duty of active care for the structure from the defendant. As the learned justice stated, he should have called on the plaintiff' to join him in the construction or in the repair. It' is not necessary to say what the effect of a refusal to join in such repair would be. For that question is not presented. • ■
*500If, as tbe defendant claims, the plaintiff should himself have made the repairs and sued the defendant for the amount, the defendant might utterly neglect the matter and throw on the plaintiff the whole burden of keeping in order a structure used for the defendant’s own benefit. And, if the defendant were irresponsible, the plaintiff might be unable to recover anything for thus repairing.
There aie several cases cited by the defendant to the effect that a party cannot recover, when his own neglect has caused the damage, or when he has not taken ordinary care. But, in the view taken above, these cases do not apply. No question was raised as to the rule of damages, or as to the obligation of the plaintiff to prevent unnecessary injury. And, if the right to this easement for his own benefit imposed on the defendant the active duty of keeping it in repair, we see no ground to question the correctness of the charge in those respects to which only the defendant excepted.
We think the motion for a new trial should be denied, and judgment given for the plaintiff on the verdict, with costs.
Present — Learned, P. J., BoardmaN and Bocees, JJ.Motion for new trial denied, and judgment ordered for plaintiff on verdict, with costs.