Mary Greenleaf versus Nathaniel Francis, 18 Pick. 117

Putnam J. delivered the opinion of the Court. This is an action of trespass upon the case for diverting water, which the plaintiff alleges belonged to her, and which would have run into her well, if the defendant had not obstructed it. The supposed obstruction was made upon the defendant’s soil. It is a claim against common right, and must be proved by the party who makes it.

For by the common law the owner of the soil may lawfully occupy the space above, as well as below the surface, to any extent which he pleases, unless he has made some grant or agreement or there has been some statute or police regulation to the contrary. These easements may be upon or above the surface, as by right of way, of air and light, or below the surface, as oy right to dig in the soil of another, and lay pipes for an aqueduct through it, &c.

And if they are not established by proper evidence, they cannot be maintained against the will of the proprietor, but may be removed by his own authority. “ Every one has the liberty of doing in his own ground whatsoever he pleases, even although it should occasion to his neighbour some other sort of inconvenience.

Thus, he who is not subject to any service may raise his house as high as he pleases, although by the said elevation he should darken the lights of his neighbour’s house.” “For this kind of work alters nothing in the fabric of the other house ; and nn, who is the master of the house, ought to have placed his lights so as to be out of danger of this inconvenience, which he had no right to hinder, and which he might easily have foreseen.” 1 Domat’s Civ. Law, tit. 12, § 2. Vid. 3 Ayliffe’s Civ. Law. tit. 5. page 307. The lots of the plaintiff and defendant adjoin each other.

And the case finds, that the plaintiff’s cellar was dug fourteen years ago, and water was then found, and in about two years afterwards an excavátion was made in the earth, in the place where the well now stands, about three feet deep, and a barrel was inserted, and the water rose to the surface. Afterwards the defendant dug to obtain water in his own soil, and in a place where it was convenient for him, near to the well of the plaintiff, and after the defendant’s well was dug, the water ceased to flow into the plaintiff’s well, so copiously as it did before.

It is for this alleged injury that the action is brought. Then it is to be considered, whether the plaintiff has proved any such easement, as she claims to have in the soil of the defendant. She does not pretend, that there has been any written grant from the defendant. She relies upon the use, as evidence from which a jury should presume a grant ; and there is no other circumstance to be relied upon.

But by our law, the right of the plaintiff to control the operations of the defendant on his own soil must, in the absence of a written agreement, be made out by an adverse possession continued peaceably under a claim of right for twenty years at the least. In the present case such proof is wanting. There is not evidence of any adverse use or possession at all. For the defendant had no means of knowing that the plaintiff’s well was supplied by springs in the defendant’s soil, until the defendant dug for water there for his own use.

He sustained no injury by the use which the plaintiff made of the water she found in her own well; and the use, if it had been adverse, has not been continued for twenty years. Indeed there is nothing in the case at bar which limits or restrains the owners of these estates, severally, from having the absolute dominion of the soil, extending upwards and below the surface so far as each pleases ; each, however, by the law, being held so to operate below the surface as not to cause the soil to fall in from the adioming estate.

These rights should not be exercised from mere manee ; and so the judge ruled at the trial. But the proprietor, in the absence of any agreement subjecting his estate to another, may consult his own convenience in his operations above or below the surface of his ground. He may obstruct the light and ail above, and cut off the springs of water below the surface The proprietor must, at his peril, so place his house and make his excavations below it, as to obtain water, air and light, even if his neighbour should exercise his full rights of dominion upon his adjoining estate.

Now the case finds, that the defendant dug his well in that part of his own ground,- where it would be most convenient for him. It was a lawful act, and although it may have been prejudicial to the plaintiff, it is damnum absque injuria. Judgment on the verdict.