51 A. 209 | R.I. | 1902
The plaintiff sues to recover damages for injuries sustained from falling upon ice on a sidewalk, which *582 ice had formed from water that came from the defendant's premises. The declaration has three counts, and the defendant demurs to the first two counts.
The first count alleges that the defendant negligently allowed water, collected upon its premises by its own act, to escape to the sidewalk in freezing weather, whereby it became unsafe, etc.; and the second count that it negligently permitted water so collected and under its control to escape and to become a nuisance.
The defendant's argument assumes that the water complained of was surface water, because the declaration fails to state that it was not.
We do not think that the distinction is material, because the declaration avers that the water had been gathered or collected on the defendant's premises by its own act; thereby rebutting the inference that it was simply water which had fallen upon the land and flowing from it, since this would not be a gathering and collecting of water.
The gravamen of the count is the gathering and discharging of water, which may be from other land, or storing, as in a reservoir, of water from one's own land.
In either case, one who should so gather and discharge water would be liable. Inman v. Tripp,
While one may change the surface of his land, and thereby change the flow of water, without being liable therefor, he cannot collect water upon his land and discharge it in a volume upon another's. Wakefield v. Newell,
The first count therefore states a case of illegal collection and discharge of water as between adjoining owners, so that the remaining question is whether it is negligence so to turn it into a highway "when by reason of the elements the same would quickly become ice," and "did remain thereon until it became and was ice and until the sidewalk, by reason of the ice so formed thereon, became and was slippery, unsafe and dangerous for travel," whereby the plaintiff was injured, etc.
This allegation is substantially the same as that in Lee v.Union R.R. Co.,
The second count is similar in its statement, and the only difference which we are able to see is that this count characterizes the act complained of as constituting a nuisance. We have already referred to this as the basis of a right of action, and hence the count is covered by what we have said about the first count.
The demurrers are overruled.