of the earth, or spreading over the surface in the season of melting snows or heavy rains, is not liable for an injury to his neighbor caused by such diversion or obstruction.

Where the plaintiff and defendant were adjoining owners of land by the side of a highway, in the ditch of which water was accustomed to accumulate, and for many years it found its way off through a depression in defendant's land: Held, that plaintiff would acquire no right by prescription to have the water run off over the defendant's land.

THIS was an action on the case for making an embankment by the side of a highway, and causing the water which gathered there to flow over the plaintiff's land.

It appeared on the trial that the plaintiff and defendant were adjoining owners of land on the same side of a highway; that in the season of melting snows and heavy rains, the water was accustomed to accumulate in the ditch on the same side of the highway; and the plaintiff's evidence tended to prove that for more than forty years the water passed off through a depression in the defendant's land, without seriously affecting the plaintiff's land-and the injury complained of was the erection of an embankment by defendant at the low place on his land, by which the water was diverted and turned upon the plaintiff's land.

The court instructed the jury that if the water so gathered had been accustomed to run off over defendant's land for forty years, and defendant had so diverted it, the action would be maintained; to which the defendant excepted, and the jury having returned a verdict for the plaintiff, defendant moved for a new trial for error in these instructions.

Wait, for plaintiff.

Barton, for defendant.

BELLOWS, C. J.-In respect to water not gathered into a stream but circulating through the pores of the earth, beneath its surface, it is now settled that a landowner who in the reasonable use of his own land, obstructs or diverts the flow of such water, even to the injury of his neighbor's land, is not liable to respond in damages.

This is not upon the principle that has been in some cases adopted that the landowner has the absolute and unqualified property in all such water that may be found in his soil, and may therefore do what he pleases with it, as with the sand and rock that form part of that soil, but upon the same general principle

that governs the use of water flowing on the surface in well-defined streams or channels; that is, to make a reasonable use of it for domestic, agricultural and manufacturing purposes-not trenching nowever upon the similar right of others.

So in respect to water percolating through the soil, the landowner may ordinarily drain his land; may obstruct the usual course of the flow of such water by walls for cellars, and other purposes, and may dig wells and use the water for domestic and agricultural purposes.

The test is the reasonableness of the use or disposition of such water; and ordinarily that is a question of fact for the jury under the instructions of the court.

In favor of the unqualified and absolute right of the landowner te dispose of all such water as he finds in his soil, or that he may draw there by wells dug on his land, it is urged that he cannot know the condition of the water beneath the surface; the changes that take place or the sources of supply of the springs and wells in the adjoining lands, or what portion is drawn from his own soil and what was originally found in his neighbor's; and therefore that there is no ground for presuming a mutual agreement between the landowners in ages past in respect to such underground water, or for holding a right to have been acquired by use or acquiescence. So is the leading case of Acton v. Blundell, 12 M. & W. 336.

In the first place we do not understand that the rights of the riparian owner to the use of streams of water running upon the surface are to be deduced from the presumed mutual agreement or acquiescence of landowners; but rather as a natural right incident to the land, to partake in the enjoyment of the common bounty of Providence, as in the cases of light and air: Dickinson v. Canal Co., 7 Exch. 299; Shury v. Piggot, 3 Bulst. 339; Chassemore v. Richards, 2 H. & N. 168; Tyler v. Wilkinson, 4 Mason 397.

And, in the second place, although it may be true that in the majority of cases the condition of the water-flow beneath the surface is not accurately known, yet in a great many instances its general course, from the slope of the surface, the appearance of springs and other indications of water, is quite obvious.

Indeed this doctrine appears to embrace that large class of cases where the water flows in sight upon the surface in wet sea

sons of the year, but not to such an extent as to mark a regular channel with banks and sides. And also where the water moves slowly, but obviously, through boggy or swampy lands, constituting the sources of streams and rivers.

The doctrine in fact would justify a landowner in intercepting and diverting the water so working its way through spongy or swampy land at any point before it was gathered into a regular channel; although it might be obvious that such water was the source of a stream which furnished valuable mill-sites; even although such diversion was in no way necessary to the enjoyment of his land.

The contrary doctrine in respect to water percolating beneath the surface is established in this state in the well-considered case of Basset v. Salsbury Manuf. Co., 43 N. H. 569; s. c. 3 Am. Law Reg. N. S. 223. And the question is whether the doctrine of that case applies to water which appears on the surface in the season of melting snow and heavy rains, but is not gathered into any regular channel or watercourse—or whether such water stands upon the footing of permanent streams running upon the surface in regular channels. If upon the latter footing, then the instructions were sufficiently favorable to the defendant.

Upon the examination of the cases which maintain the doctrinu that the landowner may dispose of the water percolating beneath his soil as he pleases, they will be found to include the case of mere surface-water not gathered into streams.

In Rawstron v. Taylor, 11 Exch. Rep. 380, it is laid down. by PARKE, Baron, in the opinion of the court, that in the case of common surface-water rising out of spongy or boggy ground, and flowing in no definite channel, although contributing to the supply of the plaintiff's mill, the supply being merely casual and the water having no defined course, the defendant is entitled to get rid of it as he pleases.

The same doctrine is announced in Broadbent v. Ramsbotham, 11 Exch. 602, which was an action for diverting water on defendant's land, which naturally flowed over the surface of a hill into a brook which supplied plaintiff's mill.

The court, per ALDERSON, Baron, says the right of the plaintiff cannot extend further than the right to the flow in the brook itself, and to the water flowing in some defined natural channel cither subterranean or on the surface communicating directly with

the brook itself. No doubt, he says, all the water falling from heaven and shed upon the surface of the hill, at the foot of which a brook runs, must, by the natural force of gravity, find its way to the bottom, and go into the brook; but this does not prevent the owner of the land on which this water falls from dealing with it as he may please, and appropriating it. He cannot, it is true, do so if the water has arrived at, and is flowing, in some natural channel already formed. But he has a perfect right to appropriate it before it arrives at such a channel.

It is quite clear that such surface-water is put upon the same footing as water percclating beneath the surface, and the cases are quite numerous that show it, and we think it should be so upon principle.

The great objection to applying the doctrine which forbids the diversion of running streams, to water circulating in the pores of the earth, is that if applied without qualification it would to a great extent prevent the beneficial enjoyment and improvement of one's own land.

A similar effect, though less extensive, would be produced by applying that doctrine to mere surface-water not gathered into any regular and defined channel. In many cases of spongy and swampy lands the water moves from a higher to a lower level over a wide space which under such a doctrine could not be drained or reclaimed. So in case of rain falling upon the side of a hill, and which would naturally find its way upon the surface into a brook at the bottom, such a doctrine might effectually prevent the improvement of very extensive tracts of land.

Again, the boundary line between what shall be deemed underground percolation and mere surface-water would often be extremely difficult to define, and from that source serious embarrassments might arise.

From the nature of the case, then, we think that the line is properly drawn between water running in natural streams with well defined channels, and that which is merely spread over the surface and flows without any regular course or channel, or circulates under the surface through the pores of the earth.

The authorities are numerous to this point besides those already cited; among them are 3 Kent's Com. 439 note 2, and cases; Ashley v. Wolcott, 11 Cush. 192, Luther v. Winnisimmet Co., 9 Cush. 171; Wheatly v. Baugh, 25 Penn. St. Rep. 528, Buffum v. Har

ris, 5 R. I. 243; See also Ellis v. Duncan, 21 Barb. 230; Washburn on Easements 358, and cases cited.

These authorities, to be sure, hold generally that in respect to mere surface and underground water not gathered into streams, the landowner where it is found, has the unqualified right to dispose of it as he pleases, although in some cases the right appears to be limited to cases where it is dealt with in the improvement of such owner's land, and without malice, as in Wheatly v. Baugh, 25 Penn. St. Rep. 532.

But these cases concur in putting all water not gathered into watercourses, whether upon the surface or underneath, on the same footing, and so far we think they are right. As, however, the case of Bassett v. Salsbury Manufacturing Company holds in respect to water percolating through the soil that the landowner's right to obstruct or divert it is limited to what is necessary in the reasonable use of his own land, we think the same rule must be applied to mere surface-water not gathered into a stream.

To give the landowner the absolute and unqualified right of disposing of such water would in many instances be productive of great mischiefs to his neighbors, and lead to interminable struggles between them; for the same power to deal with such water would exist in each landowner when it was on his land.

In many instances the water would assume so much of the character of a natural watercourse as to make the application of such a doctrine odious and unjust-while at the same time a total want of power to modify such flow to meet the necessities of the landowner, would often stand in the way of valuable improvements which might be made without serious detriment to any one.

The doctrine which we maintain adapts itself to the ever-varying circumstances of each particular case; from that which makes a near approach to a natural watercourse down, by imperceptible gradations, to the case of mere percolation, giving to each landowner while in the reasonable use and improvement of his land the right to make reasonable modifications of the flow of such water in and upon his land.

In determining this question all the circumstances of the case would of course be considered; and among them the nature and importance of the improvements sought to be made, the extent of the interference with the water, and the amount of injury done to the other landowners, as compared with the value of such im