This section is from the book "The Law Of Real Property and Other Interests In Land", by Herbert Thorn Dike Tiffany. Also available from Amazon: A Treatise on the Modern Law of Real Property and Other Interests in Land .
If one accumulates on his land, by artificial means, water or other fluid matter, he is bound to prevent its escape, either continuously or intermittently, on or into his neighbor's land, so as to interfere with the enjoyment of the latter.83
- Physical damage to land. If one collects or accumulates water on his land by artificial means, and it thereafter escapes on or into other land through his
81. Brown v. Illius, 27 Conn. 84, 71 Am. Dec. 491; Dillon v. Acme Oil Co., 49 Hun 565, 2 N. Y. Supp. 289; Upjohn v. Richland Bd. of Health, 46 Mich. 542, 41 Am. Rep. 178, 9 N. W. 845 (dictum).
82. The distinction is repudiated in Beatrice Gas Co. v. Thomas, 41 Neb. 662, 59 N. W. 925, 43 Am. St. Rep. 711, 49 N. W. 925. And Hodgkinson v. Ennor, 4 Best. & S. 229, is opposed thereto. See also dissenting opinion of Ellsworth, Jr., in Brown v. Illius, 27 Conn. 84, 71 Am. Dec. 49.
83. Tenant v. Goldwin, 1 Salk. 360; Snow v. Whitehead, 27 Ch. D. 588; Broder v. Saillard, 2 Ch. D. 692; Parker v. Larsen, 86 Cal. 236, 21 Am. St. Rep. 30, 24 Pac. 989; Sylvester v. Jerome, 19 Colo. 128, 34 Pac. 760; Chicago & N. W. R. Co. v. Hoag, 90 111. 339;
Quinn v. Chicago, B. & Q. R. Co., 63 Iowa, 510, 19 N. W. 336; Kin-naird v. Standard Oil Co., 89 Ky. 468, 7 L. R. A. 451, 25 Am. St. Rep. 545, 12 S. W. 937; Baltimore Breweries' Co. v. Ranstead. 78 Md. 50, 27 L. R. A. 294, 28 Atl. 273; Ball v. Nye, 99 Mass. 582; Boynton v. Longly, 19 Nev. 69, 3 Am. St. Rep. 781, 6 Pac. 437; P. Ballantine & Sons v. Public Service Corp., 86 N. J. L. 331, 91 Atl. 95; Pixley v. Clark, 35 N. Y. 520; Jutte v. Hughes, 67 N. Y. 267; Welliver v. Irondale, etc., Co., 38 Pa. Sup. Ct. 26; Texas & P. R. Co. v. O'Mahoney, 24 Tex. Civ. App. 631, 60 S. W. 902; International & G. N. R. Co. v. Slusher, 42 Tex. Civ. App. 631, 95 S. W. 717; North Point C. I. Co. v. Utah & Salt Lake C. Co., 16 Utah. 246, 40 L. R. A. 851, 52 Pac. 68.
In England it was decided, in a case frequently referred to,83b that one who collected water on his land in an artificial reservoir was liable for injury to adjoining property caused by the giving' away of the reservoir, without reference to the existence of negligence on his part, the rule being broadly asserted that one who brings on his land anything which is likely to do mischief must keep it there at his peril. The doctrine of this case has in some states been referred to with approval,83c and in others with disapproval.83d of the law of negligence,86 and such a liability is recognized in some modern cases 87 In other cases, the owner of the building has been regarded as Liable in damages when there was a lack of due care on his part in providing proper appliances for the escape of the water in another way.88
And see Cole v. Missouri K. & O. R. Co., 20 Okla. 227, 15 L. R. A. (N. A.) 268, 94 Pac. 540.
In New Hampshire the liability for the escape of water artificially accumulated is regarded as dependent on whether such accumulation involved a reasonable use of the land. Moore v. Berlin Mills Co., 74 N. H. 305, 11 L. R. A. (N. S.) 284, 124 Am. St. Rep. 968, 13 Ann. Cas. 217, 67 Atl. 578.
In Pennsylvania it has been de-cided that the owner of land may discharge on neighboring land salt water pumped up by him with oil from an oil well, if he cannot avoid such discharge without an unreasonable expenditure. Pfeiffer v. Brown, 165 Pa. 267, 44 Am. St. Rep. 660, 30 Atl. 844.
83a. Turpen v. Turloch Irr. Dist., 141 Cal. 1, 74 Pac. 295; Scott v. Longwell, 139 Mich. 12, 102 N. W. 230; Righter v. Jersey City Water Co., 73 N. J. L. 298, 53 Atl. 6; Norman v. Ince, 8
Okla. 412, 58 Pac. 632; Defiance Water Co. v. Olinger, 54 Ohio St. 532, 32 L. R. A. 736, 44 N. E. 238, and cases cited in following notes.
83b. Rylands v. Fletcher, L. R. 3 H. L. 330, L. R. 1 Exch. 265.
83c. Wilson v. City of New Bedford, 10S Mass. 261, 11 Am. Rep. 352; Graham v. Goss, 125 Mass. 232; Baltimore Breweries' Co. v. Ranstead. 78 Md. 501, 27 L. R. A. 294, 28 Atl. 273; Cahill v. Eastman, 18 Minn. 324; Wiltse v. City of Red Wing, 99 Minn. 255, 109 N. W. 114; Defiance Water Co. v. Olinger, 54 Ohio St. 532, 32 L. R. A. 736, 44 N. E. 238; Bradford Glycerine. Co. v. St. Mary's Woolen Mfg. Co., 60 Ohio St. 5C0, 45 L. R. A. 658, 71 Am. St. Rep. 740, 54 N. E. 528; Bren-nan Construction Co. v. Cumber-land, 29 App. Dist. Col. 554; Weaver Mercantile Co. v. Thurmond, 68 W. Va. 530, 3 N. C. C. A. 1, 33 L. R. A. (N. S.) 1061, 70 S. E. 126.
83d. Losee v. Buchanan, 51 N.
In one state at least it has been applied in a case which, like it, involved the bursting of a reservoir.83e Its acceptance or rejection in any particular case might not infrequently, it has been suggested, depend upon the attitude of the members of the court as regards the-economic value of the industry in connection with which the accumulation is made.83f
Without express reference to this particular decision or the general rule asserted therein, it has been stated or assumed in a number of states that one is liable for damage to neighboring land, or structures thereon, caused by the escape of water from a reservoir or artificial watercourse on his land, only if he is guilty of negligence in the construction or management thereof.88g Such a view is, however, it is conceived, to be have one's own land remain in its natural position. Consequently a landowner cannot complain of the making of excavations on the neighboring land, provided measures are taken, by the substitution of artificial support, to prevent the falling away of his own land, and there is no right of action for damages on account of such excavations on neighboring land, although they are calculated to cause a subsidence of one's own land, until such subsidence actually occurs.90 Occasionally, however, a right has been recognized to an injunction to restrain a continuance of such excavations, after they have already resulted in damage to the complainant's land,90a without reference to the fact that the excavations in themselves involved no infringement of his rights.
Y. 476; Marshall v. Welwood, 38 N. J. Law, 339; Brown v. Collins, 53 N. H. 442; Garland v. Towne, 55 N. H. 55. See Pennsylvania Coal Co. v. Sanderson, 113 Pa. 126, 57 Am. Rep. 445, 6 Atl. 453.
83e. Wiltse v. City of Red Wing, 99 Minn. 255, 109 N. W. 114. But in City Water Power Co. v. City of Fergus Falls, 113 Minn. 33, 32 L. R. A. (N. S.) 59, Ann. Cas. 1912A, 108, 128 N. W. 817, the court refused to apply the rule of Rylands v. Fletcher, to the case of the bursting of a dam in a natural stream. The rule was apparently applied in Weaver Mercantile Co. v. Thurmond, 68 W. Va. 530, 3 N. C. C. A. 1, 33 L. R. A. (N. S.) 1061, 70 S. E. 126, a case of a water tank.
83f. See the excellent discussion of the rule of this case by Professor Francis H. Bohlen, in 59 Univ. of Pennsyvlania Law Rev. at pp. 298, 373, 423.
83g. Fleming v. Lockwood, 36
Mont. 384, 92 Pac. 962; Shields v. Orr Ex. Ditch Co., 23 Nev. S49, 47 Pac. 194 (dictum); Jenkins v. Hooper Irr. Co., 13 Utah, 100, 44 Pac. 829; Howell v. Bighorn etc. Co., 14 Wyo. 14 1 L. R A. N. S. 596, 81 Pac. 785.
That negligence is necessary in order to impose liability upon one who constructed a dam for the purpose of accumulating water in a natural stream, see Livingston v. Adams, 8 Cow. (X. Y.) 175; Todd v. Lockhill 17 Cal. ,97; Shrewsbury v. Smith, 12 Cush. (Mass.) 177; King v. Miles City Irrigating Ditch Co., 16 Mont. 463, 50 Am. St. Rep. 506, 41 Pac. 431; Sloss-Sheffield Steel & Iron Co. v. Wilson, 183 Ala. 411, 62 So. 802; Lapham v. Curtis, 5 Vt. 371; City Water Power Co. v. City of Fergus Falls, 113 Minn. 33, 32 L. R. A. (N. S.) 59, Ann. Cas. 1912A, 108, 128 N W. 817; Peters v. Devinney, 6 Up. Can. C. P. 389.
Restricted to the case of an escape of the water by reason of a break in the reservoir of an isolated and approximately momentary character, and if the escape is by reason of a continuous or intermittent percolation through the sides of the reservoir, the owner would presumably, as before indicated,83h be liable for all resulting damages, on the theory that this involved the maintenance of a nuisance.