#### Bellas *v.*Pardoe.

The owner of upper land has, on lower land, an easement for the discharge of waters which by nature rise in, flow, or fall upon his land, so long as the natural course of the waters is not diverted.

A purchaser must take notice of an easement of this character, although no evidence thereof exists on the ground, and no express notice was given.

In an action to recover damages for an alleged obstruction of water-course, it appeared that the plaintiff and defendant owned adjoining farms, which were separated by a lane. The plaintiff claimed that a low place on his farm had a natural outlet for drainage across the lane to defendant’s land. A culvert had been constructed about twenty-five years before, at a point in the lane where the water naturally flowed. This culvert became filled up in time and the defendant refused to open it, or to permit plaintiff to do so. Defendant claimed, as a defence, that most of the water, which accumulated in the low place on plaintiff’s land, came from a gutter on an adjoining public road, and if the plaintiff had constructed drains from the upper to the lower side of the roadway, the water would not have accumulated. The court charged that it was not the duty of the plaintiff to make such draius across the public road, that was the business of the township authorities, and if such authorities did not do so, so as to allow the water to flow in its natural course, and water was conducted by artificial gutters along the road to plaintiff’s land, he could not recover. *I-Ield,*on a verdict for plaintiff and judgment thereon, that the judgment should be affirmed.

May 24, 1888.

Error, No 193, Jan. T., 1888, to C. P. Northumberland Go., to review a judgment on a verdict for plaintiff in an action of trespass on the case by Joseph Pardoe, against William Bellas, at Sept T., 1883, No 257. Trunkey, J., absent.

The declaration, in the 'first count, recited the ownership of a *356messuage, the right to an ancient natural water-course for surface drainage, and alleged the obstruction of the same by the defendant; in the second count, the obstruction of a wooden trunk or artificial passage-way through which the natural and ancient water-course passed across an ancient private lane; and, in the last count, the neglect and refusal to clean out and keep open the water-course; to the damage of the plaintiff, etc. Plea, not guilty.

The facts are stated in the charge of the court, as follows:

“This is an action on the case brought by the plaintiff, Joseph Pardoe, against the defendant, William Bellas, to recover damages on account of an alleged obstruction of water drainage. The law in relation to drainage has been variously decided in England and in different states of this union. A collection of cases is found on page 440 of Kent’s Commentaries, vol. 3, in a foot note. In Ohio, Maine, New Jersey, Wisconsin, Vermont and other states, the law has been laid down generally, and without qualification with regard to surface drainage, that a party may lawfully obstruct the flow from his neighbor’s land. In New Hampshire, it has been held that the obstruction of natural drainage accompanied with damage is actionable unless caused in the reasonable use of the defendant’s own land. The same just and reasonable rule was afterwards applied to the obstruction of surface water flowing in a defined stream. [The only case decided by the supreme court of this state, so far as I have any knowledge, is the case of Hays *v.*Hinkleman, 68 Pa. 324, in which case the counsel requested the court below to charge the jury, that, the defendant’s land being the superior heritage, or located above the plaintiffs, there was an easement or right on the inferior or lower land for the discharge of all waters which by nature rise in, flow or fall upon his said land, and the lower must necessarily be subjected to all the natural flow of water from the upper one; the inconvenience arises from its position, and is usually more than compensated by other circumstances. This point was affirmed by the supreme court.] The syllabus of the case is, ‘ that an upper land-owner has a right to discharge waters, which by nature rise in, flow or fall upon his land, upon the lower land, so long as the natural course of the water or drainage is not diverted.’ This being a decision of our own supreme court, I adopt it as the law so far as it is appliable to the case in hand.

“ The plaintiff is the owner of a tract of land situated in Chillisquaque township, this county, containing a little over fifty acres, and the defendant is the owner of a farm adjoining the plaintiff on the west. The plaintiff alleges that his is the upper or higher farm and that, being so, he has the right to have the natural flow of water from his farm drain upon the defendant’s farm in its natural and accustomed course, as it would flow to the natural formation of the ground. He further alleges that, during the summer of 1883, there accumulated on his land at a low place, called by the witnesses a pool, a large quantity of water; that there was a drain under a bridge and *357across a lane that runs between the plaintiff’s and defendant’s farms, put there for the purpose of carrying away the water from plaintiff’s upon and over the defendant’s farm at the precise place where it naturally flows; that this drain filled up with earth and rubbish that floated in there at times of high water; that he then requested the defendant to open this drain which he refused to do, and that he offered to open it himself, and that the defendant then and there refused to allow him to do so; that it was necessary for him in order to open the drain to go upon the defendant’s land; that the defendant replied with an oath, accompanied with what is alleged to have been a threat, and whether it was a threat or not you will determine, that if the plaintiff opened the drain he would never open another. Now, what must be determined in this case is whether the plaintiff had the right to drain the water from his land upon and over the land of the defendant, and if so, whether he was prevented by the defendant from so doing. If these matters are found in favor of the plaintiff, then the next question to be determined is whether the defendant has suffered any damage, and, if so, how much.

“ The plaintiff claims that, from this acre and a-half of ground that becomes overflowed with water, the natural drainage is across the lane referred to and in and upon the land of the defendant; that that is the natural and accustomed course for the water flow, and, if there was no obstruction in the lane, that this acre and a-half of ground would always be dry, and he could raise valuable crops upon it. One of the principal grounds of defence, as I understand it, is, that the water, or at least a large portion of the water, that comes into this basin from the plaintiff’s land, does not find its way there in its natural and accustomed course; that it is conducted along the public road by artificial means, being gutters formed by the supervisors of the township. He, the defendant, alleges that a large portion of the water naturally flowed in another direction, and especially that part of it which accumulated on the plaintiff’s ground up in the neighborhood of his buildings, the red house, for example, as testified to by the witnesses. The witnesses for the defendant stated that the natural course for much of the water that flowed from the plaintiff’s ground at this low place was in a southeastern direction to a low place which you will find marked on draft No. 1 along the road called by the witnesses the creek road. It is contended also that the water from that place had a direct course down to the Chillisquaque creek or some other outlet. On the other hand, you have the testimony of the plaintiff’s witnesses who state that the water came into this pool or basin on the plaintiff’s land from the north, east, south and west. Some of them seem to be of opinion that very little water came down this road, or at least very little came down the road that would have gone by its natural course eastward and down the creek road. But, as I have just stated, the witnesses for the defendant all seem to testify that a considerable amount of water went down the gutters along the Irishtown road, and that some *358of that water would have taken an eastern course down the creek road. We say to you, gentlemen of the jury, that if you find from the evidence in the case that any appreciable quantity of water that would naturally have flowed, from its accustomed course eastward down to the creek road, and, which would not have gone by such course into the basin or low place on the plaintiff’s land, was conducted by artificial means down the Irishtown road in the gutters along side of the road into the plaintiff’s low lands, that then the defendant was not bound to open the ditch or permit it to be opened for the purpose of having such water flow over and upon his land. So you see there is an important question for you to decide.

“ It is also contended that, on another portion of this Irishtown road leading southwest from the point where the lane intersects with it and up towards the land of John W. Butler, there was also an artificial drain along the side of the road which brought the water into this basin or low place on the plaintiff’s ground. The water that flowed there perhaps would have gone upon the defendant’s ground at all events, as you will see by the drafts, but still if it was conducted by artificial means along the road in a body, down into this place on the plaintiff’s land, in a different way from what it would have been conducted by natural means, and this caused an injury to the defendant which would not have been caused if the water had taken its natural course and flowed over and upon the defendant’s ground, then, in that case, we think the defendant would not be obliged to keep open the drain or permit the plaintiff to keep it open for the purpose of draining the water across the lane upon the defendant’s land. As to this, we will charge you further when we come to answer the points presented by both parties. You have before you the drafts furnished by both surveyors which show the levels of the ground in and around the place where the disputed point is, also the course of the plaintiff’s ground leading eastward from this pool, all of which may be of some importance in determining the question as to whether the place where the drain is across the lane is the natural and accustomed course for the water to flow from the plaintiff’s ground to that of the defendant. . . .”

The defendant presented these points, inter alia:

“ 1. If the jury believes, from the evidence in the case, that Bellas bought the land below, or west of the farm now owned by Pardoe, without notice, or evidence on the ground, that his farm was subject to the right of the upper or Pardoe farm, to the drainage of the surface water, the plaintiff cannot recover. *Ans.*I cannot answer this point as requested. A person who purchases a lower farm must take notice of the rights of the owner of an upper farm as to drainage.”

“ 4. It was the duty of Pardoe, the plaintiff, to prevent the accumulation of the surface water at the place complained of, by having a suitable number of culverts or drains from the upper to the lower side of the Irishtown road, along the side hill of his land, to *359allow the water to flow out east, according to the laws of gravity, to the creek spoken of; failing to do so, he cannot recover in this action againt Bellas. *Ans.*I cannot say that it is the duty of a landowner to make culverts, or drains across a public road ; that is the business of the township authorities, and if such authorities did not do so, so as to allow the water to flow in its natural or accustomed course, and water was conducted by artificial gutters along the road, that would have naturally flowed eastward to the creek and not into plaintiff’s pond or low ground, he cannot recover in this action.”

Verdict for plaintifffor six cents damages, and judgment thereon.

*The assignments of error*specified, 1-2, the answers to defendant’s points, quoting the points and answe'rs; 3, the portion of the charge within brackets, quoting *it;*and, 4, the action of the court in not entering judgment without costs.

N *B. Boyer,*for plaintiff in error.

If there had been the semblance of a drain on the ground, it might have been a duty of Mr. Bellas to make inquiry; but, in the absence of notice or any evidence on the ground, we say he was not required to make any inquiry whatever, and the first point ought to have been affirmed, and especially where it was evident to the eye that the water would run east before it would cross over the Irishtown road to the pond, and from there over the lane. It was necessary for the plaintiff to prove an easement before he could recover. Young *v.*Leedom, 67 Pa. 351-

The 4th point ought to have been affirmed, because nine-tenths of that water, coming from the west down hill to the low place or pond, would naturally have drained east, if there had been a suitable number of culverts across the Irishtown road, as is the custom in all hill side roads in the country. This being all gathered on the land of the plaintiff below, drained on his own land, and now he asks us to pay for his own folly. If he had directed the supervisor to direct the surface water to run its natural way, and he refusing to do so, his remedy would be against the township for his damages, and not against Mr. Bellas. Huddleston *v.*West Bellevue Borough, 111 Pa. no. [See same case up again, reported in 1 Mona. 129.]

The court misled the jury by reading the case of Plays *v.*Hinkleman, 68 Pa. 324. The point in that case, as read by the court, was not affirmed by the supreme court, as stated; it was qualified by the court below and affirmed as qualified.

The verdict of the jury being six cents, the plaintiff contends that he was not bound to pay more costs than damages, and the judgment upon the verdict ought to have been accordingly.

*C. G. Voris,*for the defendant in error.

By an inspection of the land before purchasing, the defendant would have ascertained that the natural outlet of the waters flowing into, collecting and accumulating upon the adjoining and higher land of the plaintiff was across the lane.

*360Oct. 1, 1888.

The answer to the 4th point was favorable to the defendant, and is in accordance with the decision in Hays *v.*Hinkleman, 68 Pa. 324. See, also, Kauffman *v.*Griesemer, 26 Pa. 415.

The plaintiff is the upper land-owner and had a right to leave the waters, naturally flowing into, collecting and accumulating upon his land, discharge upon the lower lands of the defendant, and whether water, other than that, “ was conducted by artificial gutters along the road, that would naturally flow eastward to the creek, and not into the plaintiff’s pond or low ground,” was left to the jury to determine, and the finding of the jury has settled that it was not conducted there by artificial gutters, but by its natural and accustomed course.

In Huddleston *v.*Killbuck Twp., it was not the natural flow of water from the higher lands adjoining, and the highway that caused the damage, but water collected upon the highway and carried a long distance by artificial gutters.

It is no defence to a suit for an injunction to prevent a defendant from obstructing a channel on his land through which the complainant has a right to have the water from his land flow, that the complainant can at small expense cut a drain or outlet for the water before it reaches'the defendant’s premises. Earl *v.*DeHart, 72 Am. Dec. 396; 1 Beasley’s Chancery, 280; Hays *v.*Hinkleman, supra.

An examination of the charge of the court below shows that the court stated the point referred to in Hays *v.*Hinkleman, and the qualification made by the court in answering the same. The jury could not therefore have been mislead.

The jury rendered a verdict in favor of the plaintiff for six cents; the defendant thereupon moved for a rule on the plaintiff to show cause why judgment should not be. rendered on the verdict without payment of costs. This rule was argued, and the court filed an opinion discharging the rule. The defendant took no exception to this ruling, and hence error cannot be assigned.

If a verdict in an action of trespass, &c., is for less than 40 shillings, in order to give the plaintiff full costs under stat. 22 and 23 Car. 2, c.9, the judge’s certificate must be made before judgment.

The statute extends only to actions quare clausum fregit, and assault and battery. Simonds et al. *v.*Barton, 76 Pa. 434; Brightly’s Costs 20-21.

Per Curiam,

Judgment affirmed.