Tillotson v. Smith, 32 N.H. 90 (N.H.)

Bell, J.

Every owner of land situate upon a stream has a right to the natural flow of the stream; a right to insist that the

stream shall continue to run uti currare solebat; that it shall flow upon his land in its usual quantity, at its natural place, and at its usual height, and that it shall flow off his land upon the land of his neighbor below in its accustomed place, and at its usual level. This right he has as an incident to the property of his land, and he cannot be deprived of it but by grant, actual or presumptive. Whenever, by reason of the interference of the owner above, the water is diverted from his land and made to run elsewhere, or the water of other streams, naturally running elsewhere, is turned upon his land, or the water of the natural stream is made to flow upon his land at a different place from its natural channel, or at a different level, or in an unnatural manner ; and so whenever, by the acts of the owner of the land below, the water is obstructed, or drawn down, or made to run off in an unusual place, or in an unusual manner, and actual injury ensues to any material amount, the owner of the land may maintain an action for such injury. In short, if any person, above or below, shall make any change in the natural flow of a stream, to the material injury of the owner situate upon it, or by any interference shall prevent the stream from flowing, as it was wont to flow, to such injury, he is liable for the damage he may occasion. These rights are subject to the rights of the owners of the land situate above and below upon the stream, to make a reasonable use of the water upon their own land, while it is passing along the same.

The precise case before us, which is of a class of which the instances are comparatively unfrequent, that of turning a stream from its natural channel and forcing it to run in the channel of another stream, was decided in Merrill v. Parker, Coxe, (N. J.) 460, cited Ang. on Wat., p. 835. The point, as it arises in the French Law, is fully discussed in Pardessus on Servitudes, secs. 82, 85 and 88.

It seems very evident that if a man’s land is materially damaged by water thrown upon it by reason of the acts of another, it can make no difference what the source of the water may be ; whether it be back water, or the flowage of the same, or the

water of another stream. The wrong consists in turning any water upon the land which does not naturally flow in that place-; and it can make no difference if the water, wrongfully turned upon a man’s land against his will, flows in the channel of an ancient stream, or in a course where no water flowed before, if similar damage results. Hawell v. McCoy, 3 Rawle 256, Huston, J.; Bealey v. Shaw, 6 East 213, Ellenborough, C. J.; Mason v. Hill, 3 B. & A. 304, Tenterden, C. J.; King v. Tiffany, 9 Conn. 162 ; 3 Kent Com. 439.

It is a long established principle of the common law, that wherever any act injures another’s right, and would be evidence in future in favor of the wrong doer, an action may be maintained for an invasion of the right, without proof of any specific injury. 1 Wms. Saund. 346, note 2, to Mellor v. Spateman. This principle has been recognized here in the case of Woodman v. Tufts, 8 N. H. 91; Snow v. Cowles, 2 Fost. 302; Cowles v. Kidder, 4 Fost. 379 ; Bassett v. Salisbury Manufact. Co., 8 Fost. 455. In the last case it was held that the state of the plaintiff’s interest might be properly inquired into, because, if he sustained no damage in fact, and had no interest that could be affected by the danger of an accruing easement, he might not recover any damages. That is not the present case. The plaintiff appears to be owner in fee.

It is suggested that the injurious acts were continued for but ” a short time, and that, instead of being an injury, they were really a benefit to his land. The case of Patrick v. Greenway, cited in Sergeant Williams, note, before referred to, seems decisive as to the first. It was trespass for fishing in the plaintiff’s several fishery, in which he obtained a verdict, and the court refused to set it aside, though he caught no fish, upon the ground that the act of fishing was not only an infringement of the plaintiff’s right, but would be evidence of using and exercising the right by the defendant, if the act were overlooked. No infringement of the rights of another can be justified on the ground that the act is a benefit to the owner, if it is done against his will. Judgment on the verdict.