Opinion,
Mr. Justice Clark :These two cases are brought against the Delaware & Hudson Canal Company for damages suffered from the negligence of the company in not properly maintaining their canal basin, in the borough of Honesdale, by reason whereof water was permitted to leak and flow from the basin into the plaintiffs’ premises. The cases are distinct, having been brought by different plaintiffs for distinct injuries suffered from the same cause. In one of them, the plaintiff is Emma Goldstein, who claims damages to her dwelling-house from a flow of water into her cellar; in the other, the plaintiff is Nathan Jacobs, who claims to have been injured by a similar flow of water into the basement of his barn and stables. As the evidence, to a large extent, was the same in both eases, they were, by agreement of counsel, tried together in the court below and were argued together in this court.
It is admitted that the Delaware & Hudson Canal Company is a corporation chartered under the laws of the state of New York, and possessed of certain powers under the laws of Penn*257sylvania, and that under its charter and the powers thus conferred the company is authorized to construct and maintain the canal, including the canal basin in question. But the enjoyment of this right carries with it the correlative or correspondent duty to construct and maintain the canal and basin in such substantial manner as not unnecessarily to annoy or injure others. The plaintiffs, in order to recover, must, therefore, establish the fact of negligence; for if we concede the right to maintain the basin, and to use it in connection with the canal, damages resulting to another from the lawful use by the owner, in the absence of malice or negligence, are damnum absque injuria: Penn. Coal Co. v. Sanderson, 113 Pa. 126.
The material and substantial facts involved in the case, therefore, were whether the water which flowed into the plaintiffs’ premises, came from the canal basin, and whether this flow of water was owing to the defendant’s negligence. These subjects of inquiry were submitted to the jury in the plainest and most explicit manner: “ Are you satisfied,” says the learned judge in his charge, “ that the water found in the cellars of the plaintiffs came from this canal?.....It is for you to determine this first question. Did the water that disturbed these plaintiffs come from the Delaware & Hudson Canal Company’s basin ? If it did not, if it is not shown to have come from there, then the plaintiffs could not recover in this action..... But if it is shown to have come from the canal basin the next question is, have the plaintiffs shown to you that it came from the basin by reason of some negligence on the part of the defendant. Before the plaintiffs or either of them can recover against the company, they must show, first, that this water came from the company’s canal; and, second, that it came by reason of some negligence on part of the defendant in maintaining that canal. And, as we have said, the burden of establishing these facts is upon the plaintiffs.”
The jury having found for the plaintiffs, under such instructions, we must, if there is any evidence to justify the submission, assume the facts upon which the verdict necessarily rests. There was evidence that when the water in the basin was high it flowed into the cellars, and when it was low it did not; that the connection between tbe basin and the cellars was such that the swell of the water when a boat came in caused an increased *258flow into the cellars. These facts certainly pointed to the canal basin as the source of the difficulty. There was evidence, also, that the water first appeared in these cellars about the time, or very shortly before the old Avail fell in, and continued to come in from that time until the cellars were drained by the new seAver. The Avitnesses testified as to the rebuilding of the Avail, as to the materials employed, the season of the year, and the condition of the soil when it Avas rebuilt, and generally as to the method of construction. The fact was conceded that before the year 1885 the water did not run into these cellars, and that after that it did. From all these facts an inference might fairly be drawn that the floAV of water was OAving to the imperfect condition of the basin or to the negligent construction of the wall.
The evidence, it is true, was not strong, but it was of suffieien C strength to compel a submission of it to the jury. There was doubtless countervailing proof, but the whole question Avas one of fact, and the jury was the proper tribunal for its determination. It appeared, also, that the matter had been brought to the company’s notice, and an investigation showed that water was in fact escaping in considerable quantities in the rear of Knapp’s store. An ineffectual effort was made to stop the leak; whether this was conducted with due diligence Avas also for the jury. Upon an examination of the Avhole case, although the testimony on this point is certainly meagre, Ave are of opinion it would have been error in the court to have AvithdraAvn it from the jury.
It is contended, however, that even if we assume the basin, owing to its imperfect construction or maintenance, to have been the source from which the water came, the injury Avas ’immediately attributable to the existence of the sewer, which in 1872 was laid from Snyder’s cellar to the river; that this sewer, taking up the water which escaped from the basin, conducted it, out of the course it might otherwise have taken, into the plaintiffs’ premises, and that the sewer was, therefore, the proximate cause of the injury. But Snyder, vrith the leave of the municipal authorities, certainly had a right to construct a seAver, and to conduct the water in his cellar to the river. The municipality made no complaint then, and makes none now; after the lapse of twelve or thirteen years, in a contro*259versy between other parties, the sewer will be presumed to have been constructed with their assent. The sewer must, therefore, be regarded as a lawful construction., and being such, the company cannot protect itself from the consequences of its own negligence, by charging them to the action of the sewer. The company was bound to construct and maintain tlie basin in a good and substantial manner; to exercise diligence and care, proportioned to the risk which sucb an undertaking involved to the property of others, and was bound to take notice of the existence of any lawful structure or construction, which might be affected thereby, or by means of wliich tlie property of others, through their negligence, might be affected.
The criticisms which have been made upon certain alleged inaccuracies of statement in the judge’s charge, in this view of the ease are unimportant.
The judgment is affirmed in each of the cases above stated.