This is a complaint for obstructing the passage of surface water flowing upon the defendants’ land, whereby it was set back upon tlie land of the plaintiffs. Judgment was rendered for the defendants, and the plaintiffs have appealed. The following are the reasons of appeal assigned:—
1. That the court erred in ruling as a matter of law, upon the facts found, that there was damnum absque injur id aud that therefore the plaintiffs were not entitled to recover damages.
2. The court having found that the course of the surface water, coming from the lands south of the plaintiffs’ and flowing across their land, was thence upon the defendants’ land, and that the defendants constructed tlieir fence two or three feet beyond the point of division and upon the plaintiffs’ line, and that the agreed place of dividing said divisional fence was at or very near the place where the greater quantity of water was accustomed to flow from the plaintiffs’ to the defendants’ land and the defendants’ divisional fence constituted.the substantial obstruction to its flow, and that except for the erection of said fence by the defendants the damage to the plaintiffs would not have occurred, and that material damage was done to and in the house of the plaintiffs by said divisional fence stopping the water, erred in ruling that, as a matter of law, the plaintiffs were not entitled to damages.
The parties are severally owners of adjoining village lots with a house upon each. Except for the intervention of man surface water would run from the plaintiffs’ lot upon that of the defendants. They made air agreement as to the portion of division fence to be built and maintained by each. The defendants built a tight board fence two or three feet longer than the agreement required from them for the purpose of closing an opening left by the plaintiffs. Tlie *350agreed place of division of the fence was at or near the place where the greatest part of the surface water flowed, and the defendants’ fence prevented the usual flow and ponded the water on the plaintiffs’ land to their material damage.
The general common law rule in reference to surface water is that stated in Gould on Waters, § 267, as follows:—- “ The right of an owner of land to occupy and improve it in such maimer and for such purposes as he may see fit, either by changing the surface, or the erection of buildings or other structures thereon, is not restricted or modified by the fact that his own land is so situated with reference to that of adjoining owners, that an alteration in the mode of its improvement or occupation in any portion of it will cause water, which may accumulate thereon by rains and snows falling on its surface, or flowing on to it over the surface of adjacent lots, either to stand in unusual quantities on other adjacent lands, or pass into and over the same in greater quantities or in other directions than they were accustomed to flow.”
This rule was accepted as the law by this court in Grant v. Allen, 41 Conn., 156; the court there saying that “ tbé right of the owner of land to determine the maimer in which he will use it, or the mode in which he will enjoy it, the same being lawful, is too high in character to be affected by considerations growing out of the retention, diversion or repulsion of mere surface water, the result of falling rain or melting snow.”
Under that rule it is the right of the defendants to erect for the entire depth of their lot a structure which will be a perfect barrier to surface water. Of course that which they may do perfectly and permanently, they may do imperfectly and temporarily; and the plaintiffs must accept the consequences. And this rule is neither suspended nor modified in the present case by the agreement as to the portion of fence to be constructed by each. That agreement was net intended, and is not by either party to he interpreted, as a permanent *351quit-claim by the other of the right to improve his property to the fullest extent.
There is no error in the judgment cofnplained of.
In this opinion the other judges concurred.