The opinion of the court was delivered,
by Read, J.William Davis was the owner of over 100 acres of land in Upper Merion township, Montgomery county, and on the 25th day of March '1865, laid out four acres of it, fronting on a public road, called the River road, in building lots, bounding them on streets and alleys. The latter he dedicated to public use, and since that time has sold ninety of these lots, upon which there have been erected some sixty-five buildings. This is the town of West Conshohocken.
Among others, he sold and conveyed to the plaintiff, on the 8th of April 1865, “ lots numbered 11, 12, 13,14,15 and 16, according to a plan of lots laid out by said William Davis, Sr., on the 25th day of Maroh 1865.” Lot No. 11 fronts on the River road, and is bounded on the south-east by a twenty-five foot street, called George street; on this lot the plaintiff erected a frame carpenter shop. George street was laid out at right angles to the public highway called the River road, which is thirty-three feet wide.
In June 1867, William Davis, Sr., sold and conveyed lots fronting on the River road, and on the opposite side of George street, to the defendant, who on the 8th of July 1868, commenced the erection thereon of a very large and expensive storehouse and dwelling. These lots are Nos. 9 .and 10, and are forty feet by one hundred and fifty-three feet deep. These lots and the plaintiff’s lots all running back to a twenty-foot alley, parallel -to the river road, and crossing George street. The defendant filled up his half of George street, but the-plaintiff did nothing to his half.
On the 20th November 1868, the plaintiff commenced this suit against the defendant, and in his declaration avers and' alleges that the water caused by rains had always been used to run from the aforesaid lot (No. 11) and buildings down a certain street or way (George street), situate between the said lot and a certain lot of the defendant; and the grievance complained of is, that the defendant “ did erect in and upon the said street or way a certain dam and causeway,- by means whereof the flow of the water caused by rains was impeded and obstructed, and caused to flow back .upon the said lot and carpenter shop,” by reason of which obstruction and flowing back of the said water the said lot and carpenter -shop were overflowed, submerged and drowned, &c.
In his charge to the jury, the learned judge, submitted two -propositions which the plaintiff must -establish in order to recover.: —
il. That he had an easement or right to drain the surface-water at the place where the-alleged obstruction was erected by the defendant, as claimed imthe. declaration.
*3552. That the defendant by his obstructions such as are alleged in the declaration, has, however slightly, obstructed or interfered with that right or easement.
The jury having found a verdict for the defendant, have established, either that there was no such easement in the plaintiff, or that the defendant had not in any manner interfered with it. The charge is very judicious, and there is only one error assigned to it, which we will consider presently. The 1st, 3d, 5th, 6th and 7th points of the plaintiff were affirmed, the last with a modification. The 4th point was declined as not material to the issue, and it would have been error to have affirmed it, as the plaintiff would have a right to drain the water into the public road, forming in the present case practically one of the streets of the town.'
The 2d point was declined upon the proper ground that the action of the township authorities could not affect the relative rights óf the parties, and which had been fully stated by the court in affirming the other points.
This leaves the 3d and 4th errors, which- are identical, being a' portion of the general - charge repeated in the answer to the 7th point. ■ “ It is proper to say in this connection, that this would not be true if the embankment only obstructed in cases of great and extraordinary floods, which are extraordinary and out of the course of nature, and which, like other inevitable calamities that are actus Dei, are to be borne without complaint.” This is certainly good law, and if it were not, it was entirely immaterial in the. present case, as there was no evidence whatever of any great or extraordinary floods, out of the course of nature.
The plaintiff purchased lots in a village regularly planned and mapped. The dimensions of the lots with the streets and alleys, and their respective widths all given, so that the purchaser knew exactly what he bought. The plaintiff’s lot fronted on the River road and -ran back one hundred and fifty-three feet to a twenty-foot alley, and was bounded on the south-east by George street. The plaintiff placed his shop three'feet below the level of the highway, and the consequence was that the water sought the lowest ground, which was the shop. The remarks of Judge Kennedy in Rentz v. Armstrong, 8 W. & S. 40, are worthy of notice.
Judgment affirmed.