The instructions given to the jury were stated in such form as to lead them to infer that this action could not be maintained, if it appeared that other owners of property in that neighborhood suffered injury and damage similar to that which was sustained by the plaintiff in her estate by the acts of the defendants. This, as applied to the facts in proof, was an error, and renders it necessary that the case should be tried anew. Exceptions sustained.1

Topic 2. Sundry Harms to Real Property and Appurtenant

Interests

SUB-TOPIC A. LAND-DAMAGE DONE BY FLOWAGE

APPEAL from Circuit Court, Knox county; JOSEPH W. SNEED, Judge. Action by Samantha Carland against Charles A. Aurin. Demurrer to declaration was sustained, and plaintiff appeals. Reversed.

This is an action of damages brought by the occupant of a city lot against the owner of an adjacent and lower lot, for creating an alleged private nuisance by filling such lower lot with earth, garbage, etc., and thereby obstructing the natural drain of surface water, and backing the same upon plaintiff's lot, and there making a stagnant pond, which impaired the use of the premises, and, through noxious vapors emitted, caused sickness to the plaintiff. The defendant demurred upon four grounds: (1) That, being within the city limits, the defendant had the legal right to fill or raise his lot, as it is alleged he did, though he thereby impeded and prevented the passage of surface water from the plaintiff's lot over his own; (2) that plaintiff, being only the occupant, and not the owner, of the lot alleged to have been injured, cannot maintain this suit; (3) that since the noxious vapors complained of are alleged to have risen from the lot occupied by the plaintiff, and not from that of defendant, there is no cause of action on account thereof against the defendant; and (4) that the plaintiff does not allege that the wrongs complained of were the natural and proximate cause of her sickness.

Ingersoll & Peyton, for appellant. Green & Shields, for appellee. CALDWELL, J. [after stating the facts as above]. Two distinct rules

1 [NOTES:

"Public nuisance: Special damage in private action." (C. L. R., VII, 366. "Public nuisance: Smoke." (C. L. R., VII, 550.)

"Nuisance

Injunction - Temporary user." (C. L. R., IX, 382.) "What constitiutes a nuisance: Printing-machinery in district devoted to printing trade." (H. L. R., XIX, 474.)]

have been administered in the various States of the Union with respect to the right of a lower proprietor to obstruct and,repel surface water flowing from the land of a higher proprietor; one being called the "common-law rule," and the other the "civil-law rule." Under what is known as the "common-law rule," the holding is that the right of the lower proprietor to occupy and improve his land, in such a manner and for such purposes as he may see fit, either by changing the surface or by the erection of buildings or other structures thereon, is not restricted or modified by the fact that such improvements or other occupation will obstruct and repel surface water that would otherwise naturally flow thereon from adjacent and higher land, even though the land of the upper proprietor may be injured thereby. This rule is based largely upon the maxim, "Cujus est solum, ejus est usque ad coelum et ad inferos," and seems to be administered, in the States of Connecticut, Indiana, Kansas, Maine, Massachusetts, Minnesota, Missouri, New Hampshire, New Jersey, New York, and perhaps in Texas (except as to railroads), Vermont, and Wisconsin. On the contrary, by the rule of the civil law, the proprietor of the lower land may not obstruct, by any means, the natural flow of surface water, and turn it back, to the injury of the higher lands of his neighbor; the latter owner having, by the law of nature, an easement of servitude of drainage over the lands of the former for the flow of surface waters. This rule is based partly upon the necessity of the situation, and partly upon the maxim, "Sic utere tuo ut alienum non laedas," and appears to prevail in Arkansas, Alabama, California, Georgia, Illinois, Iowa, Kentucky, Louisiana, Maryland, Michigan, Nevada, North Carolina, Ohio, Pennsylvania, Tennessee, Texas (as to railroads), Virginia, and West Virginia. There have seemingly been some changes from one rule to the other in Arkansas, Missouri, Iowa, New Hampshire, and some of the other States, and South Carolina appears to occupy a kind of middle ground between the two, allowing the lower owner to make any reasonable use of his land which may not unreasonably injure adjacent property above. The two rules are considered, and most of the adjudged cases cited, in 24 Am. & Eng. Enc. Law, pp. 907-922, inclusive; in Gray v. McWilliams (Cal.), 21 L. R. A. 593, 608, and note (s. c. 32 Pac. 976); in Sheehan v. Flynn (Minn.), 26 L. R. A. 632, and note (s. c. 61 N. W. 462); in Vanderwiele v. Taylor, 65 N. Y. 341, 345; in Barkley v. Wilcox, 86 N. Y. 141; in City of Waverly v. Page (Iowa), 40 L. R. A. 465, and note (s. c. 74 N. W. 938); and in Cooley, Torts, pp. 574-580, inclusive. Judge Dillon, adopting the remark of Lord Tenterden (Rex v. Commissioners, 8 Barn. & C. 355, 360) in reference to the rights of owners along the seacoast, says that the law largely regards surface waters a common enemy, which every proprietor may fight or get rid of as best he may. 2 Dill. Mun. Corp. (4th Ed.) § 1039. The cases decided by this court are Carriger v. Railroad Co., 7 Lea, 388; and Railway Co. v. Mossman, 90 Tenn. 157, 16

S. W. 64. All of these cases give distinct recognition and application to what is called the "civil-law rule," without so naming it, or mentioning the other rules. . . .

Judge Cooley, after noting the fact that some of the States apply the one rule and some the other, says that

"no doubt all the States would recognize an exception (to the civil-law rule) in favor of the owner of a town lot, who must be at liberty to cut off drainage across it, or his lot would be worthless for many purposes. In respect to agricultural lands, strong reasons may be given for either view, and it is probable that each will continue to find supporters thereafter as heretofore." Cooley, Torts, p. 577.

Elsewhere it is said:

"In some States a distinction has been made between urban and rural property, and it has been held, or, at all events, an opinion has been expressed, that the rule of the civil law that the lower proprietor holds his land subject to the burden of receiving the surface water which naturally drains form the higher lands does not apply to city and village lots." 24 Am. & Eng. Enc. Law, 915.

In support of the last statement, the author cites cases from Alabama, Iowa, Michigan, and Pennsylvania, four of the States in which the civil-law rule prevails as to rural lands, and two cases from New York, one of the States in which the common-law rule prevails. In a later case from Iowa, however (City of Waverly v. Page, 74 N. W. 938, 40 L. R. A. 465), the civil-law rule was applied in favor of the owner of a city lot, and that, too, as against the municipality itself; and the same rule seems to have been applied as to urban property in Georgia (Goldsmith v. Elsas, 53 Ga. 186), in Illinois (Gormley v. Sanford, 52 Ill. 159), in Kentucky (Kemper v. City of Louisville, 14 Bush 87), in Louisiana (Bowman v. City of New Orleans, 27 La. Ann. 501), in Virginia (Smith v. City Council of Alexandria, 33 Grat. 208), and in other States.

We are unable to see any difference in principle between the reciprocal rights and duties of adjacent urban proprietors and those of adjacent rural proprietors, and hence we do not think it wise to apply one rule to city lots and a different rule to agricultural lands, especially in the same State. Having heretofore, in the three cases mentioned, determined the rights of adjacent rural proprietors by the civil-law rule, and still deeming that the better doctrine, we now apply it to urban lots, and in doing so overrule the first ground of demurrer.

If it be true, as averred in the declaration, that the defendant wrongfully caused noxious vapors to rise on and from the plaintiff's lot, and that she was injured thereby, the defendant is liable therefor the same as if such vapors had been wrongfully caused to rise on and from his own lot. Hence the third ground of demurrer is not well taken. Reverse and remand.

808. MIDDLESEX COMPANY v. McCUE

SUPREME JUDICIAL COURT OF MASSACHUSETTS.

149 Mass. 103, 21 N. E. 230

1889

BILL in equity to restrain the defendant from filling the plaintiff's mill-pond, and to compel him to remove material already deposited in it. Hearing upon the pleadings and a master's report, before HOLMES, J., who reserved the case for the consideration of the full court, in substance as follows.

The master's report contained the following facts. The plaintiff, a mill corporation, was the owner of the mill-pond in question, which was raised by its dam, and of the land under the pond, and for thirty years and more had constantly used the water power thus created for manufacturing purposes. The defendant was the owner of land upon the side of a hill sloping down to the pond as far as the land of the plaintiff. The defendant had annually used and cultivated his land, in the ordinary way, to within a short distance from the plaintiff's land, for the purpose of raising garden vegetables, and had brought thereon manure and ashes, which he had dug and spaded into the soil. The defendant had erected neither a fence nor a wall to prevent the filling of the plaintiff's pond, or to prevent the raising of his own land, which the plaintiff had the right to flow, or for the purpose of banking against further flowage.

The plaintiff contended that the defendant, by cultivating the land, had changed the character of the soil, had caused it to wash into its mill-pond, and that the land could not be legally so used if it interfered with the plaintiff's rights of flowage, and caused the filling up of its mill-pond.

The master found that although in fact the cultivation of the land did cause a raising of the land near the shore of the plaintiff's pond, and a filling up of the pond, it was such a use of the land as might be legally made; and ruled that the defendant might, as he had done, cultivate his land, and apply ashes and other fertilizers in the ordinary course of husbandry.

B. F. Butler & P. Webster, for the plaintiff.

C. Cowley, for the defendant.

HOLMES, J. This is a bill brought to restrain the defendant from filling up the plaintiff's mill-pond. The master reports that the defendant's land is on the slope of a hill running down to the pond, and that the only acts of the defendant tending to fill the pond have been those of cultivating and manuring his own soil in the ordinary way, for the purpose of raising garden vegetables. The question is whether the defendant has a right to do these acts notwithstanding their effects upon the plaintiff's land and water rights.

The respective rights and liabilities of adjoining land owners cannot be determined in advance by a mathematical line or a general formula, certainly not by the simple test of whether the obvious and necessary consequence of a given act by one is to damage the other. The fact that the damage is foreseen, or even intended, is not decisive apart from statute. Some damage a man must put up with, however plainly his neighbor foresees it before bringing it to pass. Rideout v. Knox, 148 Mass. 368. Liability depends upon the nature of the act, and the kind and degree of harm done, considered in the light of expediency and usage. For certain kinds there is no liability, no matter what the extent of the harm. A man may lose half the value of his house by the obstruction of his view, and yet be without remedy. In other cases his rights depend upon the degree of the damage, or rather of its cause. He must endure a certain amount of noise, smells, shaking, percolation, surface drainage, and so forth. If the amount is greater, he may be able to stop it, and to recover compensation. As in other matters of degree, a case which is near the line might be sent to a jury to determine what is reasonable. In a clear case it is the duty of the Court to rule upon the parties' rights.

The present case presents one of those questions of degree. If the plaintiff were complaining of offensive drainage from a vault, it would be entitled to recover upon proof of the fact. Ball v. Nye, 99 Mass. 582. If it complained that the surface drainage was made offensive by the nature of the substance spread by the defendant upon his land, the case would be nearer the line, and the right to recover possibly might depend upon further circumstances, such as whether the substances were usual and reasonable fertilizers, or refuse, etc. See Brown v. Illius, 27 Conn. 84, and 25 Conn. 583. In this case it complains, not that the substances brought down are offensive, but that the defendant causes any solid substance to be brought down at all. Practically it would forbid the defendant to dig his land, at least without putting up a guard, since the surface drainage necessarily carries more of the soil along with it if the earth is made friable by digging. This would cut down the defendant's right of surface drainage to a very small matter indeed. We are of opinion that a man has a right to cultivate his land in the usual and reasonable way, as well upon a hill as in the plain, and that damage to the lower proprietor of the kind complained of is something that he must protect himself against as best he may. The plaintiff says that a wall would stop the trouble. If so, it can build one upon its own land. Dickinson v. Worcester, 7 Allen, 19. Flagg v. Worcester, 13 Gray, 601, 607. Parks v. Newburyport, 10 Gray, 28. Cassidy v. Old Colony Railroad, 141 Mass. 174.

Bill dismissed.