Ogburn v. Connor

By the Court, Belcher, J.: The plaintiff was the owner of a farm adjoining and lying directly north of a farm owned by the defendant. A portion of the defendant’s land was lower than the land of the plaintiff, and had extending through it a natural depression. There was no stream or watercourse upon the plaintiff’s [350]land, but the surface water, falling upon it in times of heavy rains, and flowing upon it from other adjoining and still higher lands, was accustomed, before its flow was obstructed by the defendant, to pass off through the depression named over the land of the defendant into a large natural watercourse known as Willow Slough.

In 1863, and while the plaintiff’s land was unoccupied public land of the United States, the defendant built along the north line of his land a ditch fence for the protection of his land and growing crops. This ditch fence consisted of a ditch and embankment with some rails or boards on top of the embankment, and was sufficient to partially obstruct the water which fell or collected upon the plaintiff’s land, from flowing over the land of the defendant as it had been before that time accustomed to do. In 1869, the defendant strengthened and enlarged the embankment so as to form a more complete barrier to the passage of the water referred to. In December, 1871, very heavy and copious rains fell, and a large quantity of water therefrom collected upon the land of the plaintiff, but its passage off from the land was obstructed by the embankment erected by the defendant, and thereby a large part of the plaintiff’s land was inundated and his growing crop of wheat injured to the amount of five hundred dollars.

This action was brought to recover for this injury, but the Court below being of the opinion that the defendant might lawfully protect his land by an embankment or other means, against the surface water flowing from the land of the plaintiff, and that the injury was therefore damnun absque injuria, rendered judgment for the defendant.

The question presented for decision is important and not free from difficulty. In Massachusetts the Courts have steadily adhered to the rule followed by the Court below. In that State it is said that “the obstruction of surface water, or an alteration in the flow of it, affords no cause of action [351]