CHAPTER II.

OF INFRINGEMENTS UPON RIGHTS NATURALLY INCIDENT TO THE POSSESSION AND OWNERSHIP OF LAND.

SECTION I.

OF THE RIGHT AND BURDEN OF NATURAL SERVITUDE.

78. Torts arising from the disturbance of rights of servi tude. We have already seen that every invasion of a man's legal right constitutes a tort or civil wrong, in respect of which compensation in damages is recoverable (ante, p. 7); and one of the most interesting and important branches of the law of torts. is the law regulating the rights, duties, and responsibilities of neighboring landowners, in respect of the use and enjoyment of their respective properties.

79. Natural and necessary servitudes.-The unrestricted ownership of property naturally carries with it a right to do whatever the owner pleases with his property, without regard to the question whether what he does tends to the injury of another or not; but the common interests of mankind require certain restrictions to be placed upon this freedom of ownership, to prevent one proprietor from so using and managing his property as to render it a source of injury and annoyance to another. Thus, it is impossible for landed property to be beneficially occupied and enjoyed unless one landowner, or occupier, is prevented from damming up or diverting the natural streams and water-courses of his land, and thereby depriving his neighbor of water, which would otherwise naturally flow to him. Neither could land be usefully and beneficially cultivated or enjoyed if one man was allowed to dig pits, mines, or quarries, so near to the boundary of his estate, that his neighbor's land, being deprived of its natural support, would slide down and sink into the hollow. (a)

Every landed estate, therefore, is burdened with a certain duty or service, which it is bound by law to render to the adjoining property. In the Roman law this service was denominated a servitude-a term used to denote both the right and the obligation. (6) The Roman servitude was either affirma

(a) Bonomi v. Backhouse, Ell. Bl. & Ell. 659.

(b) Item a jure imponitur servitus prædiorum vicinorum: scilicet ne quis stagnum suum altius tollat, per quod

tenementum vicini submergatur; item ne faciat fossam in suo per quam aquam vicini divertat, vel per quod ad alveum suum pristinum reverti non possit in toto vel in parte. Bracton, lib. 4, fol. 221.

tive or negative. The affirmative servitude bound the proprietor to suffer something to be done on his own land for the benefit of the adjoining estate. The passive servitude merely required him to refrain from doing something, which, if done, would be injurious to his neighbor.

80. Dominant and servient tenements.-The land on which the burden was imposed was called the servient tenement, and the estate or property which had the right to the servitude was called the dominant tenement. The existence of the benefit in favor of one property, and the burden thereby imposed upon another, depended upon the lands being so situate as to render it a necessary adjunct to the beneficial use and enjoyment of the dominant tenement; and the exercise of the right of servitude was confined to what was reasonable and necessary for such enjoyment, and merely accessorial thereto.

81. Prædial and urban servitudes.--Servitudes among the Romans were further divided into prædial and urban servitudes. The term "prædial servitude" was used to denote the burden imposed upon one field, or parcel of cultivated ground, in favor of the use and enjoyment of another adjoining piece of cultivated land; whilst the term "urban servitude was applied to the burdens imposed upon houses and buildings, whether situate in town or country. In the Roman law, through the operation of urban servitudes, one neighbor might. be permitted to place a beam upon the wall of another; or might be compelled to receive the droppings and currents from the gutter-pipes of another man's house upon his own house, area, or sewer; or might be exempted from receiving them; or restrained from raising his house in height, lest he should darken the habitation of his neighbor. (c) But our own law does not impose any such burden, ex jure naturæ, upon adjoining proprietors; but the servitude may be established by contract, grant, or prescription (post, ch. 3).

There are, therefore, two principal classes of servitudes in our law; viz., natural servitudes, which are derived from the situation of places, and are a necessary and natural adjunct to the properties to which they are annexed; and conventional servitudes, which are founded on contract, and are established by grant or psescription (post, ch. 3).

(c) Instit. lib. 2, tit. 3. s. I.

The right and burden of natural servitude are contempora neous with the right of property itself. (a)'

82. Natural aud necessary servitudes accessorial to the drainage of land.-Land can not be cultivated or enjoyed, unless the springs which rise on the surface and the rains that fall thereon be allowed to make their escape through the adjoining and neighboring lands. All lands, therefore, are of necessity burdened with the servitude of receiving and discharging all waters which naturally flow down to them from lands on a higher level; and if the owner or occupier of the lower lands interposes artificial impediments in the way of the natural flow of the water through or across his lands, and by so doing. causes the higher lands to be flooded, he is responsible in damages for infringing the natural right of the possessor of such higher lands to the natural outfall and drainage of the soil, unless he has gained a right to pen back water by contract, grant, or prescription, in the manner presently pointed out (post, p. 66). (e) So if the proprietor of the higher lands alters the natural condition of his property, and collects the surface and rain-water together at the boundary of his estate, and pours it in a concentrated form, and in unnatural quantities upon the land below, he will be responsible for all damage thereby caused to the possessor of the lower lands. (ƒ)*

2

29 Law J., Exch. 81; Dig. lib. 39, tit. 3. (f) Sharpe v. Hancock, 8 Sc. N. R. 46. See Harrison v. Great Northern R. Co., 33 Law J., Exch. 267.

1 A natural servitude, is an incident of land, annexed to and inseparable from it, as the right to pure air, to the natural flow of a stream, and to have the soil remain intact. An interference with any of these rights is a nuisance and an actionable injury. Saville v. Killner, 26 L. T. (U. S.) 277 ; Tyler v. Wilkinson, 4 Mason (U. S.) 397; Farnand v. Marshall, 19 Barb. (N. Y.) 380; 21 Id. 409.

This servitude only exists as to water arising from natural cau-es, as from the falling of rain, the melting of snow, and water arising from springs. Kauffman v. Griesmin, 26 Penn. St. 407; Martin v. Jett, 12 La. Ann. 504; Hayes v. Hinkleman, 68 Penn. St. 324; Loath v. Clifton, 22 Ohio St. 292; Gilham v. R. R. Co., 49 Ill. 484; Laumier v. Francis, 23 Mo. 181; Lattimore v. Davis, 14 La. Ann. 161; Gormley v. Sanford, 52 Ill. 158; Ogham v. Connor, 46 Cal. 346.

The owner of the higner estate can not lawfully, by artificial means, change its course or volume. Chasemore v. Richards, 7 H. L. Cas. 349; Baird v. Williamson, 33 L. J. (C. P.) 101; Miller v. Laubach, 57 Penn. St. 155; Martin v. Riddle, 26 Penn. St. 415; Lancy v. Jasper, 39 Ill 54; Livingston v. McDonald, 21 Iowa, 160. And if he attempts to discharge water arising from artificial causes over the servi ent estate, the lower owner may lawfully erect embankments and prevent the discharge of any of the water over his land. Beard v. Murphy, 37 Vt. 475.

Every landed proprietor has, ex jure naturæ, a right to the continued flow of natural streams and rivulets running through his land, and a right to the reasonable use of the water of such streams. Lands, therefore, through which a natural stream flows, are burdened with the, servitude of receiving and transmitting the waters of the stream to the lower land; and the possessor of the land through which the stream runs, is clothed with the duty of keeping the channel and bed thereof free from artificial and unnatural obstructions.

In the Roman law, we find that every proprietor of land is enjoined to refrain from doing anything on his land to impede the natural flow of water from the high land to the land below, whilst the proprietor of the higher land is prohibited from sending, by means of artificial contrivances, larger quantities of water on to the lower land than would naturally flow there, or altering the course of streams and giving a new direction to the surface water, to the prejudice of the proprietor of the lower land. (g)

In the Code Napoléon, under the head of "Servitudes derived from the Situation of Places," we read that all lower lands are subjected, as regards those which are higher, to receive the waters which flow naturally therefrom, to which the hand of man has not contributed. The proprietor of the lower ground can not raise a bank which shall prevent such flowing, nor can the superior proprietor of the higher lands do anything to increase the servitude of the lower lands.” () '

(g) Pardessus, part 2, ch. i. s. I. Obligations qui concernent les eaux. Dig.

lib. 8, De Servitutibus.
(h) Cod. Nap. No. 640-642.

A distinction, however, is made between urban and suburban districts in reference to this servitude. In an urban district where buildings are necessarily built near together and compactly, and when the lots often require to be graded in order to fit them for use for the purposes of building at all, it is held that a person may erect a building upon his lot, even though he thereby prevents the escape of the surface water from an upper estate, or changes the course of its discharge over a lower estate. Bowlsby v. Speer, 31 N. J. 352; Goodale v. Tuttle, 29 N. Y. 467; Pixby v. Clark, 35 N. Y. 532; Livingston v. McDona'd, 21 Iowa, 160.

1 In this country the rule of law is uniform, that every riparian owner, as an incident to his land, is entitled to the natural flow of the water, of running streams through his land, undiminished in quantity and unimpaired in quality, except to the extent that grows out of the reasonable use of it for the ordinary purposes of life. Clinton v. Myers, 46 N. Y. 511; Wood v. Waud, 3 Exch. 745; Davis v. Getchell, 50 Mo. 604; Merrifield v. Lombard, 13 Allen (Mass.) 16; Embury v. Owen, 6 Exch. 333; Chasemore v. Richards, 7 H. L. Cas. 349; Holsman v. Boil