Order of General Term affirmed and judgment final ordered for the plaintiffs for damages to be assessed, and a mandatory injunction that the defendant restore the water within twelve months from the entry of judgment.

3. Artificial Watercourses.

Curtiss V. Ayrault

47 New York, 73. - 1871.

Action to recover damages for the diversion of a part of the waters flowing in a artificial channel which had been dug by a prior owner from whom both plaintiff and defendant deduce their titles.

Judgment for defendant. Plaintiff appeals.

Folger, J. - We have examined with care the testimony in this case, particularly those portions of it to which we are pointed by the brief of the appellant, and which he claims show the existence in former days of a natural stream. We are of the opinion that the jury would not have been warranted in finding that there was ever a natural stream running from the mouth of Indian Creek or from the marsh into the cove. * * *

The waters which stood upon the marsh, or were held in partial suspense in the earth, were in legal effect surface waters. They belonged to the owner of the soil on which they stood or through which they soaked. He might lawfully lead them off in such direc-tion and in such quantity as he saw fit, and no neighbor could complain, for no neighbor had a right to receive them by percolation. The owner had only to see to it that he did not injure a neighbor by discharging them upon him in unusual quantity, or at unusual place. 'I he following authorities sustain this position: Ellis v. Duncan, Ct. of App., cited in Goodale v. Turtle, 29 N. Y. 466; Buffum v. Harris,

5 Rd. 1, 243; Rawstron v. Taylor, 11 Exch. 369; Broadbent v. Ratns-botham, Id. 602; Wheatley v. Branch, 1 Casey, 25 Perm. St. 528.

This state of facts and this rule of law accompanying them, continued until Newbold, after having made ditches, divided the tract into parcels and conveyed the parcels to different grantees. And even had he, without having made the ditches, divided the tract and conveyed the parcels to different owners, the same rule would have applied. The grantee of any parcel would have had the right to have carried off these, being surface waters, without affecting any right of any one to receive them from his land. See cases above cited.

But Newbold, being the owner of the whole tract, did very much affect and change its material condition, and the relations of different parts of it to each other. By digging ditches and deepening and extending them, he made a permanent channel by which these waters flowed in a continuous stream, from and through the parcel conveyed to the grantor of the defendant, through other parcels, on to and through the parcel conveyed to the plaintiff's grantor. There is no doubt but that he benefited the lands now owned by the defendant by freeing them from standing water, and that the benefit conferred would continue so long as the ditch was kept open and free below. There is no doubt but that at the present day the continuance of the ditch and the keeping of it open and free above would be a benefit to the lands of the plaintiff in the constant and ample supply of good water which it would afford. And if at the time Newbold made sale of these parcels of land, these reciprocal benefits and burdens were existing and apparent, and were part of the advantages possessed by these lands, and part of the value attached to them in the estimation of those dealing with each other in regard to them, and if they contracted with reference to such a condition of the lands, neither Newhold nor his respective grantees had right after that to change the relative condition of one parcel to the injury of another parcel, in these respects. This principle is distinctly stated and clearly elucidated in Lampman v. Milks, 21 N. Y., 505, and does not need particular discussion here; and see Dunkles v. The Milton R. R. Co., 4 Foster N. H. 489.

The only difficulty is whether the facts of this case exactly square with the requirements of the rule in 21 N. Y., laid down in these words: " The parties are presumed to contract in reference to the condition of the property at the time of the sale, and neither has a right, by altering arrangements then openly existing, to change materially the relative value of the respective parts." Now some stress is laid upon the purpose which Newbold had in making the ditch, and it is claimed that it was naught else than to drain his lands. But the application of the rule does not depend solely upon the purpose for which the changes have been made in the tenement by the owner. It is the open and visible effect upon the parts which the execution of the purpose has wrought, which presented to the view of the purchaser, is presumed to influence his mind, and to move him in his bargaining. We have held in Simmons v. Cloonanl (decided, December, 1871), that this presumption may be repelled by the actual knowledge of the contracting parties, which may negative any deductions to be drawn from the visible physical condition of the property. And so far, a knowledge of the purpose of the owner is an element. But there was testimony tending to show that though the first and always the chief purpose of Newbold was to drain the lands more immediately affected by the marsh, there was an auxiliary purpose, to furnish all other lands a constant and full supply of water. The question whether the purchaser from Newbold contracted with him, and bought these lands in reference to their condition at the time of sale, depends as well upon what was their purpose and understanding, and what from the physical view of the land, might be inferred to be the effect upon them in their estimate of their advantages and value with this artificial stream of water led through the different parts of it. And the question for decision at the trial was: Considering all the facts established by the testimony, and all the inferences properly to be made from it, and all the presumptions properly to be indulged, did the grantor of the plaintiff, in arriving at the price he would pay, consider and have a right to consider, as an element of the value of the land he was bidding for, this ditch across the tract giving this supply of water through it? Now, there is testimony tending to an affirmative answer; and in our judgment, it was not a correct disposition of the case to take it from the consideration of the jury, and to direct to them their verdict in the negative.