CASE 24. — ACTION BY S. C. PICKERILL AGAINST THE CITY OF LOUISVILLE AND OTHERS FOR DAMAGES FOR CAUSING THE OVERFLOW OF HIS PREMISES BY SURFACE WATER.

March 22.

#### Pickerill v. City of Louisville, &c.

Appeal from Jefferson Circuit Court; Common Pleas Branch (Second Division).

Thomas R. (Jordon, Judged

Judgment for defendants. Plaintiff appeals.

Reversed.

1. Appeal — Verdict—Conflicting Evidence. — A verdict based on conflicting evidence will not be set aside on appeal as against the weight of the evidence.

2. Torts — Parties—Joint Tort-Feasors. — Where two railroads and defendant city were alleged to have jointly contributed to detain surface water so as to flood plaintiff’s • land, they were all joint tort-feasors and properly joined as defendants in a suit for the damages sustained, as authorized by Civil Code Practice, section 83.

3. Waters and "Water Courses — Surface Water — Use of Property. —The owner of a lower estate, subject to the servitude of receiving the natural flow of surface water from plaintiff’s iipper estate, is not entitled to fill up his lot in order to make it fit for occupancy and the prosecution of business, if the *214effect is to retard the flow of such water and to turn it back on the upper ground.

4. Same — Rights of Dominant Ówner. — The owner of upper ground has no . right to make excavations, barriers, or drains thereon by whibli the flow of surface water is diverted from its natural channel and a new channel made on the lower ground, nor can he collect in one channel waters usually flowing onto his neighbor’s land by several channels and thereby increase the flow on the lower ground.

6. Same — Injuries, from Surface Water — Liability of Corporations. — Const, sec. 242, providing that municipal and other corporations! and individuals vested with the privilege of taking property for public use shall make just compensation for property, “taken, injured or damaged by them,” etc., does not relieve corporations not authorized to take property by eminent domain from liability for injuries to the owner of a dominant estate from the corporation’s filling up its servient' estate so as to throw back surface water naturally flowing thereon.

6. Same — Measure of Damages.. — Where plaintiff’s property was injüred by defendant’s turning back surface water naturally flowing therefrom onto their land, the measdre of plaintiff’s damages, if the injury complained of was permanent, was the depreciation in the market, value of his property to be recovered in a single recovery; but if the injury was temporary and could be readily removed .and the property repaired, then the measure of damages was the depreciation in the rental value of the property during the period sued for, if rented out, or, if occupied by the owner, the diminution in the value of the use of the property during the continuance of the nuisance, covered by the period for which the action was brought.

7. Same. — Instructions.—Where in an actidn for obstruction of surface water 'it appeared that plaintiff resided on the property damaged, it was error to charge the jury to allow him for loss in “its, rental value,” but instead the court should have charged that he was entitled to recover compensation for the destruction of his fencing sued for, and for the diminution of the value of the use of his property.

W. O. BRADLEY Attorney for Appellant.

*215CLASSIFICATION OF QUESTIONS AND AUTHORITIES CITED.

1. The trespass complained of was the result of the joint actions of the defendants, hence they may all be sued in one action, and a joint or several verdict rendered. (Sec. 83 Civil Code; St. Joseph v. Walpert, 80 Ky., 86; Sec. 12 Ky. Statutes).

2. Under the present and former Constitutions of Kentucky, and decisions of the Court of Appeals of Kentucky, the Civil Law is recognized, which prevents an adjoining proprietor from interfering with the natural flow of surface water from the land of one above him. (Sec. 242 Present Constitution of Kentucky; Sec. 12, Bill of Rights, First Constitution of Kentucky; Sec. 12, Art. 10, Second Constitution of Kentucky; Sec. 14, Art. 13, Third Constitution of Kentucky; City of Henderson v. McClain, 19 Ky. Law Rep., 1450; Robinson v. Swope, 12 Bush, 21; Sec. 6, Art. 8, First Constitution of Kentucky; Sec. 8, Art. 6, Second Constitution of Kentucky; Sec. 8, Art. 8, Third Constitution of Kentucky; L. & N. R. R. v. Wilson, 14 Ky. Law Rep., 719; Middlesboro Town Co. v. Helwig, 14 Ky. Law Rep., 403; Hahn v. Thombury, 7 Bush, 403; Kemper v. City of Louisville, 14 Bush, 88; Grinstead v. Sanders, 22 Ky. Law Rep., 52; Livezey v. Schmidt, 96 Ky., 444; L. & N. R. R. v. Brinton, 109 Ky., 182; Stith v. L. *&*N. R. R., 109 Ky., 170-172-173; Robertson v. Daviess Gravel R. C., 116 Ky., 914).

3. The rule of the Civil Law mentioned has been adopted in most of the States of the Union where the question has been passed on. (Am. & Eng. Ency. of Law (1 Ed.) Sub. Div. 7, p. 913; Ogbum v. Connor, 46 Cal., 346; Martin v. Jett, 32 Louisiana, 501; Denahoussaye v. Davis, 13 Louisiana, 587; Lattimore v. Davis, 34 La., 161; Hooper v. Wilkinson, 15 La., 497; Laimer v. Francis, 23 Mo., 181; Shaw v. Kansas City, 71 Mo.. 237; Lord’s Exor. v. Carbon, Iron, etc., 38 N. J. Eq. (11 Stew) 452; Same v. Same, 47 N. J. Eq., (15 Stew) 157; Martin v. Riddle, 26 Penn. St., 431; Kauifman v. Griesemier, 26, Penn St., 411; Lucat v. Rodgers, 159 Penn., 58; Boyd v. Conklin, 54 Mich., 583; Liedlin v. Meyer, 95 Mich., 586; Sheldon v. Cole, (Com. P. L.) 3 Ohio

Dec., 473 to Ohio N. P.; Cin., Ham. & D. v. Rahr, 13 Ohio, Dec., 1035; Butler v. Peck, 16 Ohio St., 343; Crawford -v. Rambo, 14 Ohio, 279; Patneau v. Claire, 32 111. App. 554; Gormley v. Sanford, 52 111., 158; Gilman v. Madison, 49 111., 487; Overton v. Sawyer, 1 Jones (N. C.) 308; Porter v. Durham, 74 (M. C.) 767; Philadelphia, etc. v. Davis, 86 Md., 281; Gulf, Colo, etc. v, Pomeroy, 67 Tex., 498; Cornish v. Chicago, 49 Iowa. *216387; Wharton v. Stevens, 84 Iowa, 107; Yannest v. Fleming, 79 Iowa, 638; see also Washburn on Easements, page 355.)

4. The true criterion of damages in this case, where the property has sustained direct injury is the difference between the market value of the property before the injury was sustained and its market value after the injury was sustained. (O’Malley v. City of Louisville, 21 Ky. Law Rep., 874; Bannon v. Romaiser. 17 Ky. Law Rep., 1379; Standard Oil Co. v. Kinnard. 13 Ky. Law Rep., 269; Same v. Same, 13 Ky. Law Rep., 270'; L. & N. R. R. v. Hoge, 6 Bush, 141; Kemper v. City of Louisville, 14 Bush pp. 89-90-91-93-96; Pearson v. Zable, 78 Ky., 175; Hauns v. Central, K. L. A., 13 Ky. Law Rep., 566; Town of West Covington v. Shultz, 14 Ky. Law Rep., 832; L. & N. R. R. v. Finley, 86 Ky., 295-301;. Stith v. L. & N. R. R., 109 Ky., 170-171-172; L. & N. R. R. v. Brinton, 109 Ky., 187; City of Mt. Sterling v. Jephson, 19 K. Law Rep., 1028; McArthur v. City of Dayton, 19 Ky. Law Rep., 883; City of Louisville v. Hegan, 20 Ky. Law Rep., 1532; (City of Louisville v. Bohlson, 22 Ky. Law Rep., 1864.)

5. The instructions of the court were erroneous because they require the jury to believe from the'evidence .that which was not denied by the pleadings.

6. Instructions 1, 2, 3 and 7 asked by the plaintiff should have been given. (Elliott’s Roads and Streets, page *VA*2; Pearson v. Zable, 78 Ky., 170; 2 Ky. Law Rep., 216; 6 Ky. Law-Rep., 807' 813; City Louisville v. O’Malley, 21 Ky. Law Rep., 873; City Louisville v. Bohlson, 22 Ky. Law Rep., 1864; City Louisville v. Norris, 23'Ky. Law Rep., 1195; Norman v. City Covington, 23 Ky. Law Rep., 118).

HELM, BRUCE & HELM for Appellee.. L. & N. R. R. Co. B. D. WARFIELD of Counsel.

POINTS AND AUTHORITIES.

1. The measure of damage for injury to property resulting from temporarily diverted surface water is the actual damage or injury to the property and any diminution in the rental value of the premises. (City of Louisville v. O’Malley, 21 Ky. Law Rep., 873; Bannon v. Murphy, 18 R., 989: ^anion v. Rhomiser, 17 R., 1378; Bank of Hopkinsville v. Western Ky. Asylum for Insane, 21 R. 1820).

2. Appellant cannot complain that one element of damage was omitted from the instructions given by the court, when he himself offered no instruction embracing such element, though he offered *217an instruction cn, the measure of damage. (First National Bank v. Germania S. Y. & T. Co., 23 Ky. Law Rep., 2123; Union Central Life Insurance Co. v. Hughes, Admr., 22 Ky. Law Rep., 1549; Turner v. King, 89 Ky., 256; Smith v. LeForce 14 Ky. Law Rep., 399; Arnold, v. Garth 10 Ky. Law Rep., 320; Turner v. Hogan, 3 Ky. Law Rep., 355; oBone v. Dyke, 3 Mon., 536; Cliff Stockton, 4 Litt., 215; L. N. A. & C. v. Davidson, 12 Ky. Law Rep., 142; L. & N. v. Bullens, 15 Ky. Law Rep., 752).

3. The jury being properly instructed upon the merits, appellant will not be heard to complain of the measure of damage that was submitted 1o the jury as the basis for recovery, when.the jury by its verdict fcund for all the appellees, and did not find for appellants even such elements as were authorized by the instructions, it being obvious that no possible prejudice could have resulted to appellant. (Gallimore v. Brewer Bros., 22 Ky. Law Rep., 193; Tolbee v. Moore, 21 Ky. Law Rep., 380; Conley v. Adams, 19 Ky. Law Rep., 1084; Seibert’s Asse. v. Ragsdale, 103 Ky., 210; Sayders Admr. v. L. *&*N. 22 Ky. Law Rep., 152; O’Bannon v. Goodrich, 23 Ky. Law Rep., 315).

4. The motion to elect should have been sustained as the three appellees were joined as joint tort-feasors when the acts complained of against each occured iat different times and in different places and were of different character, and appellees’ acts were without a common intent or co-operation or plan or concert or agreement. Appellees not being joint trespassers or joirt tort-feasors cannot be sued in one action. (Bonte v. Postel, 109 Ky., 64; Ferguson v. Terry, 1 B. M., 96; Black’s Law Dictionary; Amer. & Eng. Ency. cf Law, vol. 28, page 561; Sealey v. hlden, 61 Penh. St., 302; 100 Am. Dec., 642; Gould v. McKenna, 83 Pa. St., 203; Chipman v. Palmer, 77 N. Y., 52).

DODD & DODD for Appellee Bolt and Iron Co,

POINTS AND AUTHORITIES.

1. The common law rule with respect to surface water prevails in thisi State. (Secs. 233 and 242 of present Constitution.)

2. The obstruction of surface water, or an alternation in the flow of it, affords no cause of action in behalf of a 'person who may suffer loss or detriment therefrom against one who does no act inconsistent wi’h the due exercise of dominion over his own soil. (Middlesborough Town Co. v. Helwig, 14 Ky. Law Rep., 430; L. & N. R. R. Co. v. Wilson, 14 Ky. Law Rep., 719; Gannon v. Hagadon, 10 Allen, 106 (87 Am. Dec. 625), and numerous authori*218ties cited in the opinion; Barkley v. Wilcox, 86 N. Y., 143, and numerous authorities cited in the opinion; Norfolk & W. R. R. Co. v. Carter, 22 S. E., 517; Walker v. R. R. Co., 165 U. S., 602; Gibbs v. Williams, 25 Kans., 214; Farnham on Waters and Water ■ Rights, vol. 3, sections SSlO^and 891; Gould on Waters, sec. 267; Wood on Nuisances, sec., 398; Boyd v. Conkling, 54 Mich., 583; Barring v. Commonwealth, 2 Duv., 95).

3. Where an instruction is given as to the measure of damage recoverable more favorable than that asked by complaining party, complaint thereof cannot be made for the first time upon appeal.

4. Instructions to a jury must be based upon, and be applicable, both to the pleadings and the evidence, and should neither be broader or narrower than the pleadings-, but • should be predicated on all 'the issues raised by .the pleadings and supported by the evidence, and inasmuch as instruction numbered 6 given by the court was based upon the issues under the pleadings, regardless of the lack of evidence thereon, and was more favorable to appellant than he was entitled to, there cannot be complaint thereof in this court. (Bank of Commerce v. Haldeman, 22 Ky. Law Rep., 719; Encyclopedia of Pleading *&*Practice, vol. 11, page 158, and the authorities there cited).

5.- The measure of damage for the creation of a nuisance on property by a third party, or parties, is the diminution in the rental value of the premises by reason of and occasioned by the nuisance so created thereon. (City of Louisville v. O’Malley, 21 Ky. Law Rep., 873; Bannon v. Murphey, 18 Ky. Law Rep., 981; Bannon v. Rohmeiser, 17 Ky. Law Rep., 1378; Standard Oil Co. v. Kinnard, 13 Ky. Law Rep., 277).

6. The nature ■ of appellant’s claim for damages is for the creation and maintenance of a nuisance, and. recurrent in its character, and liability thereof is the diminution in the rental value of the premises occasioned by the nuisance. The cases of Kemper v. City, 14 Bush, 88, City v. Hegan and Bohlsen, and like cases relied upon by counsel for appellant were for permanent injuries and are hot applicable to the facts of this case.

7. Appellant cannot complain of the court’s failure by instruction numbered seven to present thereby or by any instruction a view of the law as to which he asked no instruction. (Louisville Ry. Co. v. Blum, Decided Oct. 20, 1905; Shanks v. Stewart, 16 Ky. Law Rep., 169; City of Henderson v. McGhee, 22 Ky. Law Rep., 605; C. & O. Ry. Co. v. Moats, 20 Ky. Law Rep., 1758).

*219Opinion of the Court by

Judge Settle

Reversing.

The appellant, S. C. Pickerill, owns a house and lot on. the east side of Jones street, in the city of Louisville. He complains that from March 12, 1903, to July 20, 1904, the lot in question was subjected to overflows from surface water which backed upon it in large and unusual quantities and to a depth of several feet, on account of which his coalhouse, stable, and privy upon the premises could not be reached or used by himself Or family during much of the time during the year mentioned; that these inundations of the lot made his fence fall and decay, caused the vault of the privy to overflow, and its contents -tó be scattered over the premises, which, with the stagnant water and other excrement and filth brought thereon by the overflows, created bad odors, bred disease, and endangered the health of his family. For the above-enumerated injuries suit was brought by appellant in the court below against the appellee city of Louisville, the Louisville *&*Nashville Railroad Company, and the Louisville Belt & Iron Company. The petition) set forth with great'particularity the foregoing facts, charged that the overflows of appellant’s lot and consequent injuries were caused by the joint and several negligence of the appellees, and that he had been damaged'thereby in the sum of $500, for which' he prayed judgment against them. It was also averred in the petition that when and before appellant’s house and outbuildings were erected by him on the lot the drainage was good, and no inconvenience or damage was experienced by reason of the collection of water Ithéréon; that at that time the Louisville *&*Nashville *220Railroad Company had a ditch on its right of way, running from K street southwestwardly to P street; that there was a sewer from a point south of K street to N street, and from Third street to N street, emptying out near his property on N street between Jones street and the property of the railroad company, its exit at that point being accommodated by an open ditch, which connected with the ditch on. the right of the railroad company, and by these ditches and sewers the surface water upon appellant’s lot and adjacent territory was naturally and properly carried away, and prevented from collecting on or flooding his premises. That appellee Louisville Belt & Iron Company wrongfully, unlawfully, and without appellant’s consent, made an excavation in Jones street, north of N street, so as to carry the water from Jones street halfway on the street to the end of the lots fronting on'the east side of Third street from M street to N street, and toward the property of the railroad company i in an opposite direction from that in which the water had theretofore run and been drained, thereby greatly increasing the volume of water that flowed to the right of way of the railroad company at N street, the effect of which was to fill or stop up the ditch of the railroad company, prevent the escape of a large volume of water, and cause it to be diverted from its usual course and flow back upon and inundate appellant’s premises. It was further averred in the petition that after the excavation referred to, and before the building by the belt and iron company of a roadway to its property, the appellee railroad company constructed, for the belt and iron company two switches with side tracks from the premises of that company to the railroad company’s tracks, one connecting with the railroad company’s *221track at a point north, of N street, and the other connecting with its track between N and P streets; *that,*while these switches and side tracks were constructed at the cost of the belt and iron company, they are jointly used by it and the railroad company, and are kept in proper repair by the latter company; *that*culverts were made under the switches and side tracks when they were constructed by the railroad company, hut they were and are too small to allow passage to the large volume of water that ought to *go*through them, and so negligently constructed that they soon became obstructed and closed, thereby causing the water to back upcju, overflow, and stand on appellant’s lot; that such backing of the water and overflow of appellant’s lot was greatly aggravated and added to by the acts of the belt and iron company in dumping its slag and cinders on, around, and'under the switches and tracks in question, and that these wrongful acts of both the railroad and the belt and iron companies were committed and done with the knowledge and approval of appellee city of Louisville. The petition contains the additional averment that the overflow of and injury to appellant’s lot was contributed to and augmented by the acts of appellee city in so negligently constructing K, L, and 0 streets between Third and Fourth streets, and laying a small tile pipe through the curbing on the east ' side of Third street and connecting with the railroad ditch, as to divert the surface water from, where it was naturally accustomed to flow, and cause it to form a pond near his lot, from which, and the insufficient sewers, it hacked upon and overflowed the lot; that the several obstructions wrongfully and negligently erected and maintained by appellees jointly and' severally, and which caused the overflow of appel*222lant’s lot, can readily be removed or remedied by them, and culverts and drains provided for carrying off the surface water and thereby preventing' it from backing on and overflowing his lot and causing injury to his property, but that appellees and each of them have failed and refused, and still refuse, to do anything to remedy the evils complained of, and are all equally guilty in continuing them. Appellee Louisville & Nashville Railroad Company, insisting that the petition contained a misjoinder of parties and actions, entered a motion to require appellant to elect, and appellee belt and iron company filed a general demurrer to the petition. The motion and demurrer were overruled. Thereupon appellees, separately answering, specifically denied the material allegations of the petition. Appellee belt and iron company, in addition, admitted that it “raised the foundation and elevation of the ground upon which its plant was constructed, ’ ’* but averred that it did so “only to the extent necessary to enable it to make use of said land, and construct said improvements in such manner as to prevent the surface water from passing in, upon, and over its lot as improved. ’ ’ The trial resulted in a verdict and judgment for the appellees. Appellant was refused a new trial, and by this appeal seeks a reversal of the judgment complained of.

It is not our purpose to discuss in detail the evidence heard by the jury, except to remark that there was practically no conflict as to the flooding of appellant’s lot by surface water, or as to the nature and extent of the injuries thereby caused the property. But as- to the further questions of whether the overflows were caused by the alleged negligent acts of appellees complained of, and the extent to which each: *223contributed thereto, the testimony was very conflicting, and much of it apparently irreconcilable. That of • appellant strongly conduced to prove' that the overflow of and consequent injury to. his property was caused by the negligence of appellees and each of them in the particulars alleged in the petition, and that there was such privity and connection between them and their acts of negligence contributing to the injury of appellant’s lot as to make them joint tortfeasors', and therefore jointly as well as severally liable in the action. On the other hand, the testimony of appellees’ witnesses just as strongly conduced to prove that the overflow and resulting injury to his property, complained of by appellant weré not due to the alleged acts of appellees, or any of them, but to the fact that his lot and the adjacent lots and streets, being near much standing water in ponds, made them peculiarly liable to such overflows, and that appellant’s lot was subject to periodical overflows before any of the acts of appellees complained of were done or committed, which was known or ought to have been known to appellant when and before he purchased the lot or erected the buildings thereon; furthermore, that what was done by the city of Louisville in opening and constructing the streets and ditches and laying tiling contiguous to appellant’s lot was necessary to relieve the streets and property situated on same of the surface water; that this work was performed in the usual and a proper manner, and without throwing any more water on appellant’s lot than had theretofore been accustomed to flow thereon; also that the making of the fills, switches, and side tracks by the Louisville *So*Nashville Railroad Company and the belt and iron company were necessary for the proper conduct of their *224business and to prevent their ground from being inundated by surface water. •

We are of opinion that the court correctly refused to peremptorily instruct the jury to find for the appellees or any of them. The case was properly allowed to go to the jury upon the evidence, and, if the only question submitted for our decision were whether there was evidence to support the verdict, we should be forced to answer it in the affirmative, and such would have been our conclusion if the verdict had been for appellant instead of appellee, as there was also evidence upon which such a verdict might have been based. We cannot therefore disturb the verdict, unless it shall appear from the record that the lower court erred in some ruling which can be said to have prejudiced appellant’s rights to such an extent as to have prevented him from having a fair trial.

The trial court properly overruled the motion of the appellee railroad company to elect. There was no misjoinder of parties or of actions. According to the allegations of the petition, and much of appellant’s testimony, all the appellees were wrongdoers, as by their joint and several acts and conduct appellant’s property was injured. If the averments of the petition are true, and appellant’s testimony can be relied on, all contributed in some material measure to the injuries complained of. The injuries resulted from the diversion of the water from its natural course, and the accumulation of an unusual quantity of it upon appellant’s lot. If this was caused in part by the act or acts of each of the appellees, and the entire volume of water produced by their joint and concurring negligence inflicted the injury, unquestionably it was inflicted by the combined or joint *225action of all three of them; therefore they are jointly,, as well as severally, liable. It would be impossible to segregate their acts of negligence, and state just what part of the injury was caused by each appellee. Manifestly, section 83 of the Civil Code of Practice allowed them to be sued in the one action, though they might have been sued separately, and a recovery had against them separately.

We are also of opinion that the lower court properly overruled the demurrer filed by appellee' belt and iron company to the petition. It is the contention of that company, and such was the ground of' the demurrer, that under the common law, which it is insisted is in force in this State, it had the right to fill its lot so as to render it fit for the occupancy of its plant and prosecution of its business, although in doing so it diverted the water from its natural course and caused it to flow in increased volume upon the lot of appellant, without becoming responsible in damages to him for such injury as may thereby have been caused his lot. If- this was once recognized in this State as the common-law rule, it has been modified. In other words, this court has, in effect, though not in express terms, adopted in respect to such cases as this the rule of the civil law, which only subjects the lower estate to the easement or servitude of receiving the natural flow of surface water from the upper estate. That is to say, the doctrine seems to be that where two estates join, and one is lower than the other, the lower must necessarily be subject to the natural flow of surface water from the upper one. If this proves to be an inconvenience, it arises solely from the position of the lower estate, and in the nature of the case is unavoidable. Therefore the owner of the lower ground has no right to erect em*226bankments, or create other obstructions, whereby the natural flow of surface water from the upper ground is stopped or caused to back upon and overflow the upper ground. On the other hand, the owner of the upper ground has no.right to make excavations, barriers, or drains upon his ground by which the flow of surface water is diverted from its natural channel and a new channel made on the lower ground, nor can he collect into one channel waters usually flowing off into his neighbor’s land by several channels, and thereby increase the flow upon the lower ground. Kemper v. City of Louisville, 14 Bush, 87; Hahn v. Thornberry, 7 Bush, 403. A case that seems to be directly in point is that of Grinstead v. Sanders, 56 S. W. 665, 22 Ky. Law Rep. 51. From- the facts stated in the opinion, it appears that Grinstead and Sanders were owners of adjoining lands that were swampy, and for many years the surface water ran from Sanders’ land onto Grinstead’s, where it passed off through a large sink hole. Sanders cut two ditches through his 1'and, by means of which a large surface of swampy land was drained onto Grinstead’s land. To prevent this increased flow of water on his land, Grinstead erected thereon-a dam which caused the water to back upon Sanders ’ land, and the latter sued to compel the removal of the dam. On these facts this court held that Grinstead’s land, by reason of its location, was compelled to receive the surface water which flowed naturally from Sanders ’ land, and that he could not obstruct it by the erection of the dam, which he was ordered to remove, but that Sanders should be compelled to close up the ditches he had dug on his land, as they had increased the flow of water on the land of Grinstead. The case supra is directly in line with the doctrine of the civil *227law. The same is true of the case of Livezey v. Schmidt, 96 Ky. 444, 16 Ky. Law Rep. 596, 29 S. W. 26, the action being one to recover damages for the alleged pollution of the water. In that case it is said: “However injurious the natural flow of water from the land of one upon another, there is no action for injury, as a nuisance cannot exist in a legal sense from the failure of one to change the flow of water which springs from nature itself, and not from the act of the owner.”

It is contended by counsel for appellee belt and iron company that only corporations or individuals invested by section 242 of the State Constitution with the privilege of taking private property for public use can be made responsible in damages for injuries such as are complained of in the case at bar, and that, as the company in question is not invested with such privilege, no recovery can be had against it in 'this case. The object of the constitutional provision supra is to' enlarge a similar provision of the previous Constitution by allowing compensation for property “injured or destroyed,” as well as that taken for public use, as was alone provided by the former Constitution. City of Henderson v. McClain, 43 S. W. 700, 19 Ky. Law Rep. 1450. The fact that in Stith v. Louisville & Nashville Railroad Co., 109 Ky. 168, 22 Ky. Law Rep. 653, 58 S. W. 600, and Louisville & Nashville Railroad Co. v. Brinton, 109 Ky. 190, 22 Ky. Law Rep. 664, 58 S. W. 604, it was held that under this provision of the Constitution a railroad company could be made to respond in damages for such injuries as are here complained of by appellant, is not decisive of the right of other corporations or individuals not enjoying the privilege of taking private property for public use to' escape liability *228for such injuries. Although in the cases supra the plaintiffs sought and were allowed to recover damages of the railroad company for like- injuries under and by virtue of the section of the Constitution supra, yet in the latter, Louisville & Nashville Railroad Company v. Brinton, it is said: ‘ ‘ Our opinion is that under the rule of the civil and common law the appellant is liable for-damages. However, if we were in error as to this, it would be immaterial, as it is clear that section 242 of the Constitution makes it liable. It is said in Gould, Waters, section 271: ‘An owner of land has no right to rid his land of surface water, or superficially percolating water, by collecting it in artificial channels and discharging it through or upon the land of an adjoining proprietor: This is alike the rule of the common and civil law.”

It cannot be the meaning of the Constitution that private property can be taken, injured, or destroyed for private use. . It- does not require a constitutional provision to prevent the exercise of such arbitrary power over the property of another. Indeed, this court, in the case of Kemper v. City of Louisville, and Hahn v. Thornberry, supra, decided before the adoption of the present Constitution, allowed such a recovery as is here sought, and in the following cases, decided since the adoption of that instrument, such recovery was also allowed without question or discussion as to' whether the right of action arose under section' 242 of the state Constitution, or under the civil or common law. Thoman v. City of Covington, 62 S. W. 721, 23 Ky. Law Rep. 117; Louisville & Nashville Railroad Co. v. Cornelius, 64 S. W. 732, 23 Ky. Law Rep. 1069; City of Louisville v. Coleburne, 56 S. W. 681, 22 Ky. Law Rep. 67; Finley v. City of Williamsburg, 71 S. W. 502, 24 Ky. Law *229Rep. 1336; City of Madisonville v. Hardman, 92 S. W. 930, 29 Ky. Law Rep. 253; Town of Central Covington v. Beiser, 122 Ky. 715, 92 S. W. 973, 29 Ky. Law Rep. 261. If, as announced by G-ould, section 271, it is the rule of the common law, as well as the' civil law, that “an owner of land has no right to rid his land of surface water * * * by collecting it in artificial channels and discharging it through or upon the land of an adjoining proprietor,” it is equally true that such owner cannot by making excavations or'fills on his own land so obstruct the natural channels thereon as to discharge in unusual and hurtful quantities the surface water on the land of the adjoining proprietor. So, even at the common law, appellee belt and iron company would, it appéars, be liable to appellant for the injuries inflicted- by the overflowing of his lot, if it caused or contributed to such injuries by the acts complained of.

A careful'examination of the instructions given by the lower court for the guidance of the jury, convinces us that the only error appearing therein is to be found in instruction No. 7, which in attempting to define the measure of damages, told the jury, in substance, that if they found for appellant they should compensate him for any destruction of the fencing on the lot, and for any diminution in the rental value of the property between March 12, 1903, and July 20, 1904, not to exceed $500. The rule approved by this court as to the measure of damages in a ease like the one at bar is that, where the injury or nuisance complained of is permanent, the measure of recovery is the depreciation in the market value of the property, and the one recovery must suffice. Central Consumers’ Co. v. Pinkert, 122 Ky. 720, 92 S. W. 957, 29 Ky. Law Rep. 273. If, however, the injury to *230the property is temporary in its character (that is, such as can be remedied by abating the nuisance, or removing the cause of the injury, and readily repairing the property), the measure of damages is the depreciation in the rental value of the property during the period sued for, if it be rented out, or if it is occupied by the owner, the damage to its use; that is, the diminution, if any, in the value of the use of the property during the continuance of the nuisance or injury covered by the period for which the action is brought. City of Madisonville v. Hardman, 92 S. W. 930, 29 Ky. Law Rep. 253; Hutchison v. City of Maysville, 100 S. W. 331, 30 Ky. Law Rep. 1173; Louisville *&*Nashville Railroad Co. v. Carter, 76 S. W. 364, 25 Ky. Law Rep. 759; Id.,77 S. W. 719, 25 Ky. Law Rep. 1303; Bannon v. Rohmeiser, 34 S. W. 1084, 35 S. W. 280, 17 Ky. Law Rep. 1379.

In the case at bar, appellant was residing on his property; therefore it was error to instruct the jury to award him damages for loss of its rental value. This error in the instruction was necessarily prejudicial to appellant, and might of itself have superinduced the verdict for appellees, for the jury may have concluded that, as appellant had lost no rents, he was not entitled to recover. They should have been told to compensate appellant, if he was entitled to anything, for the destruction of the fencing on the lot, and for the diminution of the value of the use of his property between the dates indicated in the instruction. On account of this error in the instructions, the judgment is reversed and cause remanded for a new trial, and further proceedings consistent with this opinion.

Petition for rehearing and extension of opinion overruled. .