delivered the opinion of the Court.
The appellant is the owner of a house in the city of Baltimore, on Hoffman street, near its intersection with Gay; and the appellee is the owner of a horse railway, running along the bed of Gay street, and across Hoffman.
On the 6th January, 1877, there was a heavy fall 'of snow, and in clearing its track, it is alleged the appellee threw the snow off towards the curb, making a ridge or bank on Gay street, and across the mouth of Hoffman, thereby obstructing the natural flow of water at the intersection of the two streets.
On the other hand, the appellee proved that the snow which had been pushed off the track by the snow-plow, lay between the track and the gutter, and did not obstruct nor in any manner interfere with the natural flow of water from Hoffman street.
On the night of the day in question,. it rained very hard, and the appellant’s house was flooded with water, *81and this suit is brought to recover damages for the injuries thereby sustained.
At the trial below, the appellant asked the Court to instruct the jury: that if they should find the appellee obstructed the natural flow of water from Hoffman street, and that by reason of said obstruction the house of the appellant was flooded with water, he was entitled to recover damages for the injuries thereby sustained.
This instruction the Court granted, subject however, to the following modification:
“That if the jury should find the appellee exercised ordinary care in the management of its track on Gray street, and removal of the snow therefrom, and clearing out the gutter extending along Gray street at the side of its track, and that the damage suffered by the plaintiff was attributable either to the conformation of the ground and situation of his premises, or to a storm of such extraordinary severity that the usual drainage provided hy the city would not carry the water off, then their verdict should be for the defendant.”
The appellant contends that he was entitled to the instruction as offered by him, and that the Court erred in granting it with the qualification.
Assuming then that the snow thrown on the street by the appellee in clearing off its track, obstructed the natural flow of water from the street; and that in consequence thereof the appellant’s house was injured, the broad question is presented, whether he is entitled to recover damages irrespective of the question of negligence on the part of the railway company ?
As a general rule, it is conceded that every one must so use his own property and exercise the rights incident thereto, in such a manner as not to injure the property of another. And it is equally true, that the mere loAofulness of the act is not in itself a test in all cases, of exemption from liability for injuries resulting therefrom to the prop*82erty of others. But yet, there are certain rights incident to the dominion and ownership of property, in the exercise and enjoyment of which a person will not be liable for damages, although injury may be occasioned thereby to the property of another.
The boohs are full of cases of this kind, and it is unnecessary to cite them here. The question then is, what is the true test in actions' of this kind, by which the exemption from liability is to, be.'.determined? "VVA think it may be safely said, both on principle and on authority, that the true test is, whether in the act complained ofj the owner has used his property in a reasonable, usual and proper manner, taking care to avoid unnecessary injury to others.
This is the rule laid down by the House of Lords, in the recent case of Rylands vs. Fletcher, 3 English and Irish Appeals, 330. There the defendant built a reservoir for the purpose of keeping and storing water, and the weight of the water broke through some old disused mining passages and works, and injured the mine of the plaintiff.
The Court of Exchequer, Bramwell, B., dissenting, were of opinion that the plaintiff was not entitled to recover, but on appeal to the Exchequer Chamber, this judgment was reversed, and on appeal to the House of Lords, the judgment of the Exchequer Chamber was affirmed.
The Lord Chancellor said: “ The defendants, treating them as the owners or occupiers of the close in which the reservoir was constructed, might lawfully have used that close for any purpose for which it might in the ordinary course of the enjoyment of land be used; and if in what I may term the natural user of that land, there had been any accumulation of water either on the surface of the ground, or under ground, and if by the operation of the laws of nature that accumulation of water had passed off into the close occupied by the plaintiff, the plaintiff could not have complained that that result had taken place.”
*83“ On the other hand, if the defendants not stopping at the natural use of their close, had desired to use it for any purpose which I may term a non-natural use, for the purpose of introducing into the close that which in its natural condition was not in or upon it, for the purpose of introducing water either above or below ground in quantities and in a manner not the result of any work or operation on or under the land, — and if in consequence of their doing so,.or in consequence of any imperfection in the mode of their doing so, the water came to escape and to pass off into the close of the plaintiff, then it appears to me, that which the defendants were doing, they were doing at their own peril.”
The right of the plaintiffs to maintain their action, was based entirely upon the ground that the defendants had used their land in an unusual, or in the language of the Lord Chancellor in a “ non-natural ” manner, but the right to use it for any purpose for which it might, in the ordinary course of the enjoyment of land be used, was distinctly asserted.
Now in this case the appellee was entitled under its charter and the Ordinances of the City of Baltimore, to the use of the bed of the street for the purposes of a horse railway, and if its track was obstructed by snow, it had beyond all question the right to remove it. And the only question is whether in clearing its track and in throwing the snow on the bed of the street adjoining thereto, it can be said, that the appellee was, under the circumstances, using the bed of the street in an unusual or unreasonable manner. We think not. The removal of the snow from its track being necessary in order to enable the company to use it for the public benefit and convenience, it was obliged either to throw it on the bed of the street or to haul it away, and no one will pretend that it was under any obligation to do the latter. It had no right of course to throw the snow in the gutter, and *84thereby obstruct the natural flow of water from the street, because in so doing the appellee would have been guilty of negligence. Nor are we to be understood as deciding that the Railway Company had the right to bank up the snow on Gay street, so as to necessarily obstruct the natural flow of water. On the contrary, it was obliged to exercise ordinary care and prudence, not only in removing' the snow from its trade, but also in throwing it on the street. And this question was distinctly left to the jury by the modification of the plaintiff’s prayer.
(Decided 25th July, 1878.)Nor do we agree with the appellant, that the evidence-was legally insufficient to prove either that the storm was one of unusual severity, or that the flooding of the plaintiff’s house was owing to the peculiar conformation of the ground.
On the contrary, the appellant’s own witness, Martinetf says, “it was a dreadful night, slush and snow ankle-deep — one of the worst nights he ever knew.”
Then as to the peculiar conformation of the ground, the proof shows, that the first story of the plaintiff’s house, is several feet below the level of the street, and there was evidence tending to show that it was liable to be flooded from several directions, namely, through Reaney’s house on the west, and then from the rear of the house by the water coming down the hill-side south of Hoffman street, and lastly by the overflow of the front side-walk, caused by the choking up of the Hoffman street gutter.
The several instructions granted by the Court presented, we think, the law of the case fairly to the jury, and the judgment below must therefore be affirmed.
Judgment affirmed.