Bellows vs. Sackett, 15 Barb. 96

By the Court, Johnson, J. The defendant erected a dwelling house on his lot in the village of Seneca Falls, about twenty-five years before the commencement of this suit. About ten years thereafter the plaintiff erected his dwelling upon his lot adjacent. The eaves of the defendant’s building came within about two feet of the plaintiff’s. The water from the defendant’s roof, on the east side, fell between the buildings, and by percolation found its way into the plaintiff’s cellar through the cellar wall., to the injury of his wall and the lower timbers of the building.

The case does not show whether the water from the defendant’s roof actually fell upon his own land or not. The county judge assumed that it fell upon the defendant’s own land. The particular injury complained of was occasioned by the defendant’s eave trough or gutter having become so old and leaky that it did not carry off the water as formerly, but the whole water from the roof on that side ran through the bottom, near the center of the trough or gutter, and fell upon the ground in a comparatively narrow space between the buildings.

The first question which arises is, whether the action can be maintained, in such a case. Ho principle is more firmly established than that contained in the familiar maxim, sic utere tuo ut alienum non leudas, but its proper application to particular cases is often found quite difficult. And it will be found perhaps still more difficult, on a critical examination, to reconcile all the cases where the application has been attempted. I shall not undertake to review or reconcile the numerous cases on this subject, but endeavor to deduce from them some ■ general principle applicable to the facts of this case.

If the defendant’s roof overhung the plaintiff’s building or soil, so as to throw water directly upon it, there could be no question but that the action would lie; the injury would be direct. But the case does not show this ; and we are to assume, I apprehend, that the water falls upon the defendant’s own land and the injury is consequential. The proof, however, shows that the plaintiff’s premises are the lowest, and that water naturally flows from the defendant’s land to the plaintiff’s.

It has been held repeatedly, and I believe uniformly, that every person has thé right to improve his own land, and if in digging to make such improvement upon his own land, he injure the foundation of the building of another upon adjoining premises, who had built so near the line that his foundation and building could not stand without the support of the land of such person thus excavating for his improvement, no action would lie for such injury; and so if in thus digging he casually drained the water from a well upon the neighboring premises.

For it' was the fault of the other to build or dig so near the dividing line that his improvement could not be supported without the aid of the adjacent soil, and he had no right to require the adjacent owner to desist or refrain from improving his own, for his benefit or security. (2 Roll. Abr. Trespass, (1), pi. 1. Patridge v. Scott, 3 M. & W. 220, 228. Acton v. Blundell, 12 Id. 352. Wyatt v. Harrison, 3 Barn. & Adolph. 871. Thurston v. Hancock, 12 Mass. Rep. 220. Panton v. Holland, 17 John. 92. Lasala v. Holbrook, 4 Paige, 169. Rad-cliff’s Ex’rs v.

Mayor of Brooklyn, 4 Comst. 195.) Though if the natural soil, independent of the superincumbent addition of the improvement, from the adjacent lot, fall in, in consequence of such excavations, the person making the excavation is liable for such damage, upon the ground that he is bound so to use his own as not to injure the property of another in its natural condition. Even this, however, is questioned by Bronson, justice, in Radcliff’s Ex’rs v. Mayor of Brooklyn. This was substantially the rule of the civil law.- (1 Domat, 615.) Barker, chief justice, in Thurston v.

Hancock, said that it was “ a common principle of the civil and the common law, that the proprietor of land, unless restrained by covenant or custom, has the entire dominion, not only of the soil, but of the space above and below the surface, to any extent he may choose to occupy it.” To these and all like cases the maxim has been held not to apply. Nor is this case analogous strictly to that of a nuisance, where it is always held that the action will lie although the person inflicting the injury confined himself to his own premises ; because the injurious consequences are felt beyond the limits of his own land.

The erection itself here is lawful and proper. Each party has an equal-right, and neither can claim any advantage by reason of long user. The case is more analogous to that of diverting or obstructing the natural flow of a stream of water upon the surface, by means of which adjacent premises are injured by the percolation of the wa+er through the soil.

The rule of the civil law was, that “ rain water or other waters which have their course regulated from one ground to another, whether it be by the nature of the place, or by some regulation, or by a title, or by an ancient possession, the proprietors of the said grounds cannot innovate any thing as to the ancient course of the waters.

Thus he who has the upper grounds cannot change the course of the water either by turning it some other way or rendering it more rapid, or mating any other changes in it to the prejudice of the owner of the lower grounds.” (Domat, 616, Cushing's ed.) This is substantially the rule of the common law, and it applies, I apprehend, equally to flowing streams and descending rains, though not to. streams flowing beneath the surface, the courses and fountains of which do not lie open to observation and cannot be traced.

Here the defendant had the clear right to erect his. house, to cover it with a roof, which would prevent the rains from falling upon the surface it covered, and to turn the water falling upon such roof, upon any portion of his own soil, at any point and in any quantity he might choose. But for such interruption or diversion, to the manifest injury of another, he is clearly responsible.

Here, owing to a want of suitable repairs, the water falling upon an area of 25 feet by 13, is collected at a single point and precipitated in an unnatural and unusual quantity and manner so near the plaintiff’s premises as necessarily to cause him an injury.

It is said on the part of the defendant that the plaintiff might have prevented the injury by a suitable embankment between the buildings, and that by neglecting to make such embankment or to take any other precautions to prevent the' water flowing through his wall, he is to be regarded as contributing in some degree to the injury, and cannot therefore recover. But I do not see that the principle applies in a case like this.

For aught that appears, the plaintiff’s building was sufficiently protected for all ordinary purposes, and certainly he has contributed nothing to the wrongful precipitation of the water by which the injury was occasioned. The aggressor can never say that it was the duty of the assailed to ward off the blow unlawfully aimed at him.

But if the principle could be held to apply, the verdict of the jury has settled the question in favor of the plaintiff; ■ But it is- objected that the. justice had1 no jurisdiction to try the cause, inasmuch as the defendant was not in possession, and that in order to make him liable it was necessary to prove his title, so that it appeared from the plaintiff’s own showing that the title to the land was in question.

But it does not appear from the case that the defendant disputed his title to the premises ; and where title is not pleaded before the justice, he is not ousted of his jurisdiction, because it may be necessary to prove title; unless such title shall be disputed by the defendant. (2 H. S. 168, § 63, 2d ed. Koon v. Mazuzan, 6 Hill, 44. Browne v. Scofield, 8 Barb. 241.) Again; it is urged that the action cannot be maintained against the landlord, but should have been brought against the tenant in possession.

But to make this objection available to the defendant, I think he should have shown that such tenant was bound to make repairs. The character of the tenancy is not shown, and in the absence of all proof, I think we are not bound to presume, in this country, at least, that the tenant was bound, as between him and his landlord, to make the repairs. But however this may be, I am inclined to the opinion, that in any event, the plaintiff may resort directly to the owner, as the one who keeps up and maintains the erection, which causes the injury, whoever may be the temporary occupant under him.

I think the defendant cannot object that he was not allowed to prove by the witness Sackett, that the plaintiff claimed the ownership of the space between the two buildings. Tf he had established that fact, he would inevitably have established a cause of action against himself. But the offer went further, and included the proposition to prove that the plaintiff claimed to own the east side of the building called the defendant’s, also. The evidence was objected to, and the offer overruled by the justice. If either the ground of the objection, nor the object of the proof offered, are disclosed by the return.

Of course the plaintiff’s claim was nothing, unless he had title, or was in fact in possession and had control of the building. Title could not be proved by parol if objected to, and it cannot be, and obviously was not pretended, that the plaintiff was in possession of the defendant’s building. [Monroe General Term, March 7, 1853 Selden, T. R.

Strong and Johnson, Justices.] Where evidence offered is objected to and excluded, and neither the grounds of the objection, nor the object of the proof is stated, and the court can see that a good objection might have been taken, it will presume that the proper objection was taken, and the decision made upon that ground.

And so where evidence is admitted by the justice after objection, and it appears from the return that the objection was general, and the court can see that the subject matter of the evidence was proper, and the manner of proving such facts, only, was objectionable, it will presume that no objection was made to the manner of proving the fact, but that it was made to any proof of such fact.

All the presumptions are in favor of the correctness of the proceedings of the court below, and it is for the party alleging error, to make it clearly appear. 'This rule . applies to the testimony of the witnesses by whom the injury and the damages were proved. Thus in the case of the witness Seigfield, who is a mason, after he had described the effect produced by the water upon the joists and the wall, he was asked what damage had been done to the building by the rotting of the joists and the cracking and injury to the cellar wall. To this the defendant objected generally.

If he had objected that damages could not be proved in that way, by the opinion or judgment of the witness, the objection would have been good. But as it stands, it is a mere objection to the proof of damages at all. The same observations apply to the next objection, stated in the return, to evidence of a similar character. The ground of the objection does not appear. On the whole, I am of opinion that no error has been committed, and that the judgment of the county court must be affirmed.