This action was brought to recover damages for the wrongful diversion and discharge of water by the defendant upon plaintiff’s land. A verdict was ordered for defendant.
The evidence tends to show the following facts : Defendant is owner of a farm north of and higher than plaintiff’s farm; There was a low and swampy part of defendant’s land, sometimes a pond into which two streams ran and where surface water also collected. This swamp naturally discharged its surplus water to the west, and
. We think there were other questions of fact that should have been submitted to the jury, and that the case was erroneously taken ■ from it and decided as a question of law. If there were streams running into this pond on defendant’s land, he had no right to change their course and pour their waters upon the plaintiff’s premises. Many of the witnesses speak of such streams. “ There were two running streams leading into and feeding it,” plaintiff’s pond. “ The water of this stream comes from springs on side hills east side of it,” etc. “ There are banks to this stream. Grass does not grow in the bottom of this stream when it dries np in July or August. Stream starts three miles from the pond. For nearly two miles it is a living stream ; never dries up ; a regular,creek ; quite a wide stream ; some places a rod wide; avérage three, four or five feet wide of running water, six or eight inches deep; two or three feet deep when snow-water was running off in the spring sometimes.” Here is evidence either showing the existence of streams emptying into defendant’s pond, or from which the jury would be warranted in finding that such streams did exist and their waters were turned on plaintiff. “A water-course is a stream of water usually flowing in a definite
The learned counsel for the defendant impliedly admits this rule of law, and attempts to evade it by saying that only surface water was within the issue joined by the pleadings, tried and decided by the court. But in this they are in error, as we think. The complaint says, the water from two small brooks or streams, continuously flowing, contributed to the surface water creating the pond which was turned on plaintiff’s land. In the answer the defendant admits the existence of a water flow from two small streams “ for a short time, spring and fall,” into said pond. The character of such streams was a matter of proof on the trial, as we have already seen. It was fairly before the court and jury, and the court erred when it refused to submit to the jury whether the plaintiff was not entitled to recover on the facts proved, and instead thereof directed a verdict for the defendant. The exceptions to each decision are well taken.
If we are correct in what has already been said, a new trial must be had without reference to tlie other questions involved in the case. But they may and probably will arise, and our opinion may as well be now stated in aid of the court upon such new tidal. Assuming that the water in question was all surface roater, the defendant would have no right, by ditches and artificial channels, to take it from its natural courses and accustomed channels and throw it upon the plaintiff’s premises, to her injury. There is no conflict of authorities upon this point. (Washb. on Easm. [2d ed.], 432, 427— 431, 439 ; Kauffman v. Griesemer, 26 Penn. St., 407, 413 ; Miller
The rule may be conceded and the defendant may insist that he dug this ditch and 'discharged this water upon his own premises, twenty rods or more from plaintiffs land,* where it sank ’ into the soil and by percolation through the soil reached the plaintiff’s promises. Conceding that to be true it does not relieve the defendant from the direct consequences of his own act. It is a legal maxim .that we must use our own property in such a manner as not to injure that of another. The case is no different in the cause or the damage, whether the water passes on the surface or through the gravel upon plaintiff’s lands. The evidence tends to establish'tlie identity of the water discharged by defendant through his ditch with that coming to the surface upon plaintiff’s lands. If it be controverted by evidence then it was for the jury, but the court in its decision assumed the water, was the same. The injury is the direct consequence of the water from defendant’s ditch. Though discharged at first upon his own lands it ran of necessit}7 immediately upon plaintiff’s land and it is immaterial whether on, or above or below the surface.
If the water which passed through this ditch injured the plaintiff’s property the defendant ought to be held responsible therefor upon the facts as they are now presented to us.
The judgment and order denying a new trial must be reversed and a new trial granted, costs to abide the event.
Judgment and order reversed and new trial ordered, costs to abide the event.