Sec. 335. General considerations.

336. Rights restrictive of another's user exceptional.

337. Malicious erections.

338. Rights as to air.

339. Natural water courses.

(a) General considerations.

(b) Appropriation of water.

(c) Diversion without appropriation.

(d) Pollution of water.

(e) Obstruction of flow.

(f) Increase of flow.

(g) Non-riparian owner's right of action, (h) Restoration of former conditions.

(i) Prior appropriation.

Sec. 340. Water in lakes and ponds

341. Surface water.

(a) General considerations.

(b) Discharge into natural water course.

(c) Discharge on lower land.

(d) Obstruction of discharge.

(e) Appropriation.

(f) Pollution.

Sec. 342. Underground water.

(a) Interference with percolation.

(b) Malicious interference.

(c) Underground water courses.

(d) Pollution.

Sec. 343. Water artificially accumulated.

344. Roof water.

345. Lateral support.

346. Subjacent support. 347. Suspension of rights.

they could, it has been well said,3g be created only by grant or prescription.3h

Sec. 335. General considerations

The owner of land has, as against the owners of other land in the neigh-borhood, four classes of rights as regards his own land: firstly, in so far as he is in actual or constructive possession of his land, a right to freedom from interference with his possession, enforcible by an action of trespass or its statutory equivalent; secondly, a right to demand that the owners of neighboring land shall exercise due care not to cause physical damage to his land or to erections thereon; thirdly, a right, or possible right, to demand that, irrespective of any question of due care, an owner of neighboring land shall not cause physical damage of a more or less permanent character to his land or to erections thereon, as the result of a condition intentionally created on such neighboring owner's land, and fourthly, a right to demand that the owner of neighboring land shall not, by his mode of utilizing or enjoying his land, interfere with the enjoyment, or possible enjoyment, of the former's land.

Of the various classes of rights above enumerated, the first two, that is, the right to immunity from trespass, and the right to immunity from damage by reason of lack of due care, would seem to call for consideration in a work on torts rather than in one on the law of land. The third class of rights, that of absolute immunity from physical damage to one's land or to erections thereon, of a permanent or quasi permanent character, by reason of some particular condition created on neighboring land, that is, from damage caused by such condition even in the absence of negligence, appears also to be properly a subject for consideration in connection with the law of torts. The question of the existence and extent of such rights, involving an absolute liability on the part of neighboring land owners for physical damage, has been the subject of a very considerable amount of discussion, and must be regarded as far from settled.1 We will in this work refer merely to the more important classes of cases in which such a right has been asserted to exist.2 The fourth class of rights in a landowner as against his neighbor, that to demand that the latter shall refrain, not from causing physical damage to the former's land, but from interference with the enjoyment or possible enjoyment thereof, is so intimately connected with the question of the rights of enjoyment incident to land, as to appear to call for consideration in a work on real property. Logically rights of this character might more properly be discussed in a previous chapter of this work,3 since they are not properly rights as to the use of another's land, but merely rights to non interference with one's own enjoyment by reason of such use, but it is convenient to consider them at this stage, in view of their intimate association with the law of easements, the subject of the following chapter. Indeed they are sometimes referred to as easements, but with doubtful propriety, and we adopt the expression "natural rights" to describe these different phases of a general right in the landowner freely to enjoy the use of his land in its natural condition, without interference by his neighbors.

The natural rights which we will here consider are for the most part concerned with the. condition of the atmosphere above one's land, including therewith the matter of freedom from noise and vibration, and with the condition or disposition of water which naturally passes over, through, or by one's land. Of the same general character is the right of a landowner to immunity, to a qualified and somewhat uncertain extent,3a from apprehension of danger from the use

1. See articles by Professor Francis H. Bohlen, 59 University of Penna. Law Rev. pp. 298, 373, 423, by Professor Jeremiah Smith, 17 Columbia Law Rev. p. 382, 30 Harv. Law Rev. pp. 241, 319, 409, and references in these articles.

2. See Post, Sec.Sec. 343-346.

3. Ante, c. 9.

3a. As to the general theory of recovery for diminution in the value of land by reason of a made of neighboring land,3b as for instance, its use for the storage or manufacture of explosives3c The right of a landowner, moreover, so far as it may exist, to immunity from the presence or passage of appliances, projectiles or the like above his land,3d may also be regarded as a natural right, it enuring by way of protection, if not of his actual enjoyment of his land, at least of his possible enjoyment thereof. We also discuss in this chapter what are known as the rights of lateral and subjacent support, though these, as being, not rights as to freedom from interference with enjoyment, but rather rights of immunity from damage to the physical structure of one's land, belong more properly to the third class of rights above referred to.

Though these natural rights, so called, will be here discussed only as they exist against those in possession of or utilizing neighboring land, similar dangerous condition on adjoining land, see editorial note 28 Yale Law Journ. 171, apparently by Professor Cook.

3b. Occasionally relief has apparently been given against the occupation of neighboring land by a special class of hospital, by reason merely of a prevailing impression that the vicinity of such a hospital is a source of danger, without regard to the correctness of this impression. See Stotler v. Rochelle, 83 Kan. 86, 109 Pac. 788; Everett v. Paschall, 61 Wash. 47, 31 L. R. A. (N. S.) 827, Ann. Cas. 1912B, 1128, 111 Pac. 879; Baltimore v. Fairfield Improvement Co., 87 Md. 352, 39 Atl. 1081, 67 Am. St. Rep. 344, 40 L. R. A. 494; Deaconess Hospital v. Bontjes, 207 111. 553, 64 L. R. A. 215, 69 N. E. 748.

3c. Henderson v. Sullivan, 159 Fed. 46, 86 C. C. A. 236, 14 A. &

E. Ann. Cas. 590, 16 L. R. A. N. S. 691; Whaley v. Sloss Sheffield S & I. Co., 164 Ala. 216, 20 Ann. Cas. 82, 51 So. 419; Remsberg v. Iola Portland Cement Co., 73 Kan. 66, 84 Pac. 548; State v. Excelsior Powder Mfg. Co., 259 Mo. 254, 67 L. R. A. N. S. 1915A, 615, 169 S. W. 267; Wier's Appeal, 74 Pa. 230; Emory v. Hazard Powder Co., 22 S. C. 476, 53 Am. Rep. 730; Comminge v. Stevenson, 76 Tex. 642, 13 S. W. 566. As to other combustibles, such as gasolene, see Hendrickson v. Standard Oil Co., 126 Md. 577, 95 Atl. 153; Whittemore v. Baxter Laundry Co., 181 Mich. 564. 148 N. W. 437, 52 L R. A. N. S. 930; O'Hara v. Nelson, 71 N. J. Eq. 161, 63 Atl. 836; McGregor v. Camden, 47 W. Va. 193, 34 S. E. 936. 34 S. E. 936. 3d. Ante, Sec. 251.

Real Property.

[Sec. 335 rights of enjoyment of one's land free from disturbance exist as against other members of the community. For instance, the owner of land may complain of the pollution of the air by reason of an industrial plant upon neighboring land, but he might also complain of the pollution of the air by the operation of an appliance not on neighboring land, as for instance, on a ship lying in a nearby harbor, or in a balloon moored in close proximity to his land. But the possible cases of interference with the enjoyment of one's land otherwise than by reason of the mode of utilization of neighboring land are but few, and it is convenient to confine our discussion in this regard to the reciprocal rights of owners and occupants of land. Furthermore, the fact that the disturbance of the physical condition of one's land is by one in the possession of neighboring land may frequently qualify the right to object to such disturbance, for the reason that some degree of disturbance may be a necessary incident of the reasonable user of such other land, the theory being, in general terms, that a land owner can object to a particular utilization of neighboring land only if it can be regarded as unreasonable as against him.3e

These natural rights, though in effect restrictive of the use of another's land, are rights, as above indicated not in such other's land, but as to one's own land.3f Their legal recognition does not enable the owner of land to object to the use which may be made of neighboring land so long as he is not affected thereby in his actual or possible enjoyment. A cannot, for instance, object that B, an upper riparian proprietor on a watercourse, diverts the water, if the water is returned to the channel before it reaches A's land. Were these natural rights, so called, rights in another's land,

3e. See article by Professor Jeremiah Smith, "Reasonable Use of One's Own Property as a Justification for Damage to a Neighbor," in 17 Columbia Law Rev. at p. 383.

3f. See 4 Harv. Law Rev. 15; 13 Id. 664-668.

Sec. 336] his land free from disturbance by unreasonable noise or vibration,18 and the right which he has, it seems, to immunity from excessive and unreasonable heat on adjoining premises.18a

Natural Rights.