By the Court.
McMillan, J.In a civil action for a nuisance,' *181the complaint must state facts which in law constitute a nuisance from which 'the plaintiff has suffered special injury. Under a complaint stating a nuisance of one kind, it is not permitted to prove a nuisance of a character essentially different. For a supra riparian owner to increase the flow of a natural water-course by-draining into it other streams so as to injure a lower riparian owner is a nuisance, and actionable by the latter; so also is the fouling of the water-course by the supra riparian owner. But in an action by the lower riparian owner, under a complaint stating a cause of action of the-first kind only, he could not prove a nuisance of the latter kind.
The complaint in this case states only a cause of action for increasing the flow of the water course through plaintiff’s lots, and does not state any facts showing that the water is fouled by the defendant; the finding of the referee, therefore, that the water “ discharged through the sewer is frequently unhealthy and offensive, from the decayed matter contained therein, and causes plaintiff’s premises'to be less valuable for occupation than they would otherwise be,” is not within the issues, and the defendant’s objection that this portion of the finding cannot be considered, either as ground of injunction or damages must be sustained. So also, for the same reason, as well as other obvious reasons, we must exclude from our consideration at this time the further fact found by the referee, “that the defendant has since the commencement of this action extended said sewer about ten feet upon and over plaintiff’s said premises, and without the consent of said plaintiff.” Exclusive of these facts the referee finds : that the defendant is, and for the last fifteen-years has been, a municipal corporation of this state ; that the plaintiff is and has been since July 3d, 1869, the owner in fee of certain premises in the report described, upon which, in the spring of 1870, he *182erected a dwelling house, which he now occupies as a homestead ; that for more than ten years past thé defendant has maintained, and now maintains, a sewer which conducts and discharges a large quantity of water upon the premises of said plaintiff; that said sewer was built by said defendant more than six years prior to the commencement of this suit, and has been continuously used by said defendant since being built without objection from the owners of said lots, until the purchase thereof by said plaintiff, and plaintiff purchased said lots with full knowledge of the existence of said sewer ; that there has been for the last fifteen years a small, natural watercourse through plaintiff’s said lots, which drained the lands adjoining said lots, but that very little water flowed therein, except at times of high water, and that said water-course existed prior to the- making of said sewer; that said sewer empties into said water-course, but has largely increased the flow of water therein, and has greatly enlarged the channel thereof, and has worn away, and is now wearing away, the banks thereof, and the soil of the plaintiff’s lots, to a much greater extent than would have been caused by any stream naturally flowing through said water-course ; that the damage to the surface of plaintiff’s lots by the washing of the soil therefrom by the water conducted through said sewer, since the purchase of said lots by the plaintiff, is the sum of one hundred dollars.
It sufficiently appears from this finding, we think, that the sewer erected by the defendant conducts to and empties upon the plaintiff’s premises a greater body of water than the natural flow of water through the water-course, to the injury of the plaintiff. This, whether done by a corporation or an individual, is prima facie wrongful and a nuisance. If circumstances exist which would rebut the prima facie wrongful *183character of the act, they must be alleged and proved by the defendant as a justification.
Under what circumstances, if any, the defendant, a municipal corporation, would be justified in the act complained of, in this instance, we need not consider, since it does not appear upon what premises, or for what purpose this sewer is constructed, nor are any facts stated in the defendant’s answer which would constitute a justification in its favor.
The construction of the sewer was an unlawful act and a nuisance; every continuance of it is a fresh nuisance.
As it is not found (even if such finding were, important) that sufficient time has elapsed to bar the plaintiff’s right of action, under a limitation analogous to that applicable to actions for the recovery of real property or the possession thereof, (see sec. 4, tit. 2, ch. 66, Gen. Stat., and Angell on Lim. § 300,) it is immaterial, therefore, what time has elapsed since it was first constructed, or whether it has been used continuously since.its construction without objection by the former owner of the premises, or whether the plaintiff knew of the existence of the sewer at the time he purchased the premises.
Nothing in any or all of these facts would change the character of the defendant’s act as it appears upon this finding.
The referee was correct in his conclusions. The judgment below is affirmed.