The learned judge at circuit charged the jury that under the circumstances of the case the plaintiff, when he came upon the premises, had a right thenceforward to an enjoyment of such an easement in the lands of the defendant, for the flow of his water across the lands of the defendant, as these lands had enjoyed for-*196twenty years previous to that time, whether it was a natural or an artificial stream. That if there had been a ditch or channel across the defendant’s land through “which these waters had been accustomed to flow for twenty years, before the time yrhen the alleged trespass of the defendant was committed, the defendant was guilty of a trespass if he in any manner interfered with such flow of such waters so as to set them back upon the premises of plaintiff. That each of these parcels of land, if this right to discharge water had been maintained for twenty years, acquired such a right as to the lands below. .That if that right had continued for twenty years up to the time these questions arose, the plaintiff had the right to have it continue as it had continued during the twenty years. That the twenty years establishes the right to the continuance of the existing state of things. That it was the duty of the defendant, if the right had continued for twenty years, to maintain this ditch upon his premises in such condition that the flow of water over them' might be the same as it had been during the twenty years. He had ho right by raising the bottom of his ditch or by putting obstructions in it — certainly much less by going upon the plaintiff’s premises and putting obstructions in it — to obstruct the flow of the water. That whatever have been the acts of the defendant upon his own land, or upon the lands of the plaintiff, which have interfered with the flow of the water as the plaintiff had the right to have it flow, was a trespass upon the plaintiff and entitles him to recover such damages as he has shown that he has sustained by reason of such acts.
The defendant excepted to the charge “ that the plaintiff had the right to enjoy such an easement as had been enjoyed for twenty years.” He also excepted to the charge that if the defendant interfered with the flow of waters as they had flowed for twenty years, he was liable. The jury was, in effect, instructed if water had continued to flow across defendant’s land, through the ditch for twenty years prior to the commission of the acts complained of, the defendant was liable if he caused the ditch by any means to be .filled or the bottom of it to be raised so as to set back the water upon plaintiff’s land, even if the interference with the ditch was the result of cultivating defendant’s farm as farms are usually cultivated. These ditches were constructed and maintained by the owners of *197these lands for their mutual convenience. At times they were allowed to be filled up and remain in that condition for a time; were again cleaned out at the pleasure of the several proprietors, not being kept in the same condition for any great length of time.
There is nothing in the case showing that the occupants of plaintiff’s farm, until this contention arose, made any claim of right to use the defendant’s ditch for the passage of water accumulating on plaintiff’s farm, at most it was a user by implied license,
i The charge of the court was that twenty years’ enjoyment gave the owner of plaintiff’s premises a prescriptive right to the easement on defendant’s land. The draining of plaintiff’s land through defendant’s ditch being by the license and permission of the owner thereof, plaintiff’s use and enjoyment was not adverse and did not ripen into a right by prescription. (Wiseman v. Lucksinger, 84 N. Y., 44; Smith v. Miller, 11 Gray, 148 ; Nichols v. Wentworth, 16 N. Y. Weekly Dig., 353.)
In case the user is of such a character and the circumstances attending it are such as to show that it was a mere privilege enjoyed by leave of the proprietor of the servient tenement, it is not adverse. (Trask v. Ford, 39 Maine, 437; Angelí on Water Courses, § 210.)
In White v. Chapin (12 Allen, 516, 518) the court say, in regard to the flow of surface water from upper upon lower land over the natural surface o'f the earth: “ The law is clearly settled that no length of time creates any easement by which the owner of the lower land is prevented from using his own land as he will, although the natural flow may be stopped thereby and set back upon the upper estate.”- (Angelí on Water Courses, § 108»; Kauffman v. Griesemer, 26 Penn. St., 407.) The evidence failed to establish the existence of a natural water-course. The judge so charged the jury. Until the digging of the ditches by the parties the surface waters formed a swale, without any defined bed or established banks.
The plaintiff must maintain, under the charge of the court, in order to sustain this judgment, that he had a right to the flow of the water through the ditch or channel across defendant’s land, and that defendant was guilty of trespass if he in any manner interfered with such flow of such waters, so as to set them back upon .plaintiff’s premises, and that he jiad the right for all time to an enjoyment of such an easement in the lands of the defendant, as plaintiff’s lands *198had enjoyed for twenty years previous to that time, without change or diminution. If plaintiff’s land has this right, then defendant is prevented from cultivating his far m in the ordinary manner farms are cultivated, if, by so doing, he shall interfere in any respect with the flow of such waters, or change the manner of discharging them. No person has the right to relieve his own land from standing water, or prevent its accumulation thereon by discharging it through the ditches or drains upon the lands of his neighbor. (Foot v. Bronson, 4 Lans., 51; Bellows v. Sackett, 15 Barb., 96 ; Barkley v. Wilcox, 86 N. Y., 140.)
As the proof tended to show that a portion of the . damages sustained by plaintiff was the result of this setting back of water, caused by the partial filling up of the ditch upon defendant’s land, by the, cultivation thereof by defendant in the manner farms are ordinarily cultivated; and the jury, under the charge of the court, being permitted to take those acts of the defendant into consideration in estimating the damages the plaintiff sustained, we think the. jury were misled, and that the plaintiff recovered a larger verdict than he would if the true rule had been stated to them by the court, and for this reason we think the judgment should be set aside, and a new trial granted, costs to abide the event.
Barker, Haight and Bradley, JJ., concurred.Judgment and order reversed, and a new trial granted, with costs to abide event.