Kelly v. Dunning. and run, and of right should flow and run through said ditch or watercourse, over and across, and from and off his land, to and across the intervening land into Parrow brook. If this description is true, there can be no doubt that the stream is a natural watercourse, though it has no perennial source, and carries nothing but surface-water. That would seem to be the real character of the stream, for although the bill says it rises, or has its source on lands of Richard Harrison, it does not allege that a spring or any perennial source of supply exists there; and, in addition, it is important to notice that when it comes to describe the complainant's injuries, it does not charge that the defendant has thrown the water of the stream back on the complainant's land, but merely avers that the defendant, by filling up the channel of the stream, has cut off the outlet by which the water, which collects on his land in wet seasons and after heavy rains, has always heretofore been carried off and emptied into Parrow brook. That is the gravamen of the complaint. The complainant, in stating his injuries, says that the surface of his land is such as to collect, in wet seasons and after heavy rains, a large quantity of water which has always heretofore been carried to Parrow brook by the ditch or watercourse, but now, in consequence of the obstructions placed therein by the defendant, the water, at such times, remains on his land until absorbed by the earth or evaporated by the sun. Now, although it has been decided that no right of any kind can be claimed in the mere flow of surface-water, and that damage resulting from its retention, diversion, repulsion or altered transmission, is not the proper subject of judicial redress (Bowlsby v. Speer, 2 Vr. 351; Town of Union ads. Durkes, 9 Vr. 21), unless it appears that the damage was caused by collecting the water of a large district of country, by artificial means, into one body, and then pouring it in its accumulated volume and force at a single point (Field v. West Orange, 9 Stew. Eq. 118; S. C. on appeal, 10 Stew. Eq. 600), yet it is also well established that collections of surface-water may, under some circumstances, constitute a natural watercourse and confer upon those through whose lands it flows the same rights they would have in streams fed by a Kelly v. Dunning. perennial source. The court of errors and appeals, in Earl v. De Hart, 1 Beas. 280, adopted Chancellor Williamson's definition of a natural watercourse. The chancellor, in that case, said: "If the face of the country is such as necessarily collects in one body so large a quantity of water, after heavy rains and the melting of large bodies of snow, as to require an outlet to some common reservoir, and if such water is regularly discharged through a well-defined channel, which the force of the water has made for itself, and which is the accustomed channel through which it flows, and has flowed from time immemorial, such channel is an ancient natural watercourse." The chancellor further said: "Whether it is entitled to be called an ancient watercourse, and, as such, legal rights can be acquired and lost in it, does not depend upon the quantity of water it discharges. Many ancient streams which, if dammed off, would inundate a large region of country, are dry for a great portion of the year." This statement shows the legal right claimed by the complainant and also the nature of his injury. The defendant denies the very foundation of the complainant's case. She denies that a natural watercourse exists on the land of the complainant, or on the lands intervening between the complainant's land and hers, but says that the waterway, which the complainant calls a ditch or watercourse, is a subterranean drain constructed by the complainant and others since 1867, into which they gather the surface-water falling on their lands and beyond, and then pour the whole body thus accumulated on her land at a single point. The truth of this statement is verified by the oaths of two persons who swear that they have been familiar with the lands of the complainant and defendant for the last twenty years. If the defendant's description of the waterway in question is true, it is manifest the complainant has no case. He is the wrong-doer, and not the defendant. A landowner has no right, by means of artificial trenches or otherwise, to cause the natural discharge of surface-water from his land on that of his neighbor to be changed, to the injury of the land of the latter, by conducting it by new channels, in unusual quanti Shields v. Hunt. ties, to the land of his neighbor. Field v. West Orange, 9 Stew. Eq. 118. A question somewhat discussed on the argument, namely, whether the defendant's act in filling up the waterway, had not deprived the complainant of an easement which he had acquired in the land of the defendant by adverse user, is not in the case. The bill is not founded on a grant but on a right conferred by nature. In the present condition of the case, it is clear that the complainant is not entitled to an injunction. FANNY SHIELDS υ. HOLLOWAY W. HUNT, executor of the last will and testament of Thomas Shields, deceased. A widow who has dower by the judgment of a court which cannot award her damages or compensation for mesne profits, may maintain a suit in equity for their recovery. On final hearing, on bill and answer and proofs taken in open court. Mr. William B. Guild, Jr., for complainant. Mr. Henry C. Pitney, for defendant. VAN FLEET, V. С. This is a bill for an account. The complainant bases her right to the decree she asks on the ground that she is a dowress, and, as such, is entitled to a share of certain rents which the defendant has received as the representative of her husband. The following are the material facts: The complainant is the widow Shields v. Hunt. of Thomas Shields, who died on the 28th of September, 1880, leaving a will. The complainant, with others, interposed a caveat against the probate of the will, but, after a hearing, it was admitted to probate on the 24th of January, 1881. The will made provision for the complainant in lieu or bar of her dower, which she refused to accept by dissent filed March 29th, 1881. The testator died seized of over five hundred acres of land, situate in two different counties. The complainant remained in possession of the testator's homestead, consisting of a farm of one hundred and thirty acres, with the mansion-house, from the time of his death until her dower was set off. She paid no rent, but took the crops which she put in as well as the other products which matured during her occupancy. The land in which she was entitled to dower being situate in two different counties, the complainant, on the 3d of May, 1881, instituted proceedings in the prerogative court, for the assignment of her dower, and a final decree was made therein on the 8th of August, 1881. The testator, in his lifetime, executed three mining leases, whereby he granted to the lessees the right to mine and remove ore from certain of his lands, they covenanting to pay a fixed price per ton for all ore removed. Two of the leases provided that the lessees should pay for a certain number of tons annually, at the price agreed upon, whether they mined and removed that quantity of ore or not. Two of the leases embraced parts of the homestead farm, and the third a part of a farm called the Brown farm. The leases were still in force when dower was assigned, and one-third of the rents or royalties accruing under them, together with a part of the homestead farm, was assigned to the complainant for her dower. The defendant was authorized, by the will of the testator, to receive the rents or royalties accruing under the mining leases, and also to demise the other lands of the testator, and to receive the rents. He admits that between the death of the testator and the date when dower was assigned, he received, under one of the mining leases, over $2,500. The object of this suit is to recover one-third of the rents and profits of all the lands of which the testator died seized, from the date of his death up to the date of the assignment of dower. Shields v. Hunt. The principal ground on which the complainant's right to the relief she asks is resisted, is that, by the course she adopted to have her dower admeasured, she must be understood, as a matter of law, to have waived her right to what she now claims. The argument in support of this contention is this: The complainant had a choice of remedies; she was at liberty to sue at law, or to proceed in equity, in either of which methods she would, in addition to her dower, have been entitled to recover a share of the rents accruing subsequent to the death of her husband; or she was at liberty to apply to the prerogative court for a simple admeasurement of her dower, without damages or compensation for mesne profits. Having voluntarily adopted the latter course, and sought the aid of a tribunal which she knew was incompetent to give her anything but land, she must be understood as having abandoned whatever else she was entitled to. This view, I think it is entirely clear, has no support either in the language or the purpose of the statute relative to dower. The statute contains no words indicating, even remotely, that, if a widow adopt one remedy for the recovery of her dower rather than another, she shall; in consequence of having resorted to that particular remedy, be understood as having waived rights which she would have been entitled to had she pursued a different remedy. The statute, as I understand it, endows her not only of one full, equal third part of all her husband's lands from the time the same shall be admeasured or set off to her, but when he dies seized she is entitled to the whole value of her dower from the time of her husband's death. The pertinent words of the statute, to the case in hand, are: That if the widow's dower be not assigned to her within forty days after her husband's death, she may sue for and recover the same with damages; that is to say, the value of the whole dower belonging to her from the time of her husband's death, if he shall die seized, unto the day that she shall recover seizin of her dower by the judgment of the court. Rev. p. 321. Until her dower is assigned, the rights of a widow in the lands of her husband are in a very imperfect state. She cannot enter upon them against the consent of the heir, nor maintain |