The rule which should govern the rights of the parties to this suit was stated in the opinion given upon the exceptions taken by the plaintiff which were argued at the last term, and appears to have been carefully followed by the court upon the new trial.
If the defendants conducted the water in an artificial channel to the plaintiff’s land, and there discharged it upon it, they would be liable in an action at common law for the injury it occasioned, unless they could justify the act on the ground of necessity, under the authority conferred by their charter. The 'atter ground of defence has been submitted to the jury, upon Instructions to which no exception was taken, and a verdict found for the plaintiff
But two points remain to be considered: first, whether it makes any difference in the plaintiff’s rights, if it was shown that the water in the trench was not discharged upon his land _n a stream from the outlet, but was poured through the loose earth and stones of the railroad embankment? We think it very clear that it does not. The cause of action is the collecting water in the trench, and conducting it where it would not naturally have gone, and there wetting the plaintiff’s land by means of it.
The second point taken by the defendants, — that, if no water *431came upon the plaintiff’s land exclusively from the spring water in the cut, but only when the spring water was swollen- by the drainage of the cut and the adjacent land, caused by rain or melting snow, they would not be liable, — is equally untenable. It did not appear that the rain or other surface water would have come from the cut upon the plaintiff’s land, at or near the place at which it was discharged by means of the trench, if the trench had not been made and fitted to conduct it. But the defendants had no more right to collect the surface water in an artificial channel, and conduct it thereby to the plaintiff’s land, and there discharge it to his injury, than they had to dispose of the water from the springs in the same manner. Washburn on Easements, 353. White v. Chapin, 12 Allen, 516.
The defendants have therefore no just ground of exception to the rulings upon which the verdict against them was rendered. Exceptions overruled.