dеlivered the opinion of the Court. This is an action of trespass upon the case fоr diverting water, which the plaintiff alleges belonged to her, and which would have run into her well, if thе defendant had not obstructed it. The supposed obstruction was made upon the defendant’s soil. It is a claim against common right, and must be proved by the party who makes it. For by the сommon law the owner of the soil may lawfully occupy the space above, аs well as below the surface, to any extent which he pleases, unless he has made sоme grant or agreement or there has been some statute or police regulаtion to the contrary. These easements may be upon or above the surface, as by right of way, of air and light, or below the surface, as oy right to dig in the soil of another, and lаy pipes for an aqueduct through it, &c. And if they are not established by proper evidence, they cannot be maintained against the will of the proprietor, but may be removеd by his own authority. “ Every one has the liberty of doing in his own ground whatsoever he pleases, even although it should occasion to his neighbour some other sort of inconvenience. Thus, hе who is not subject to any service may raise his house as high as he pleases, although by the said elevation he should darken the lights of his neighbour’s house.” “For this kind of work alters nothing in the fabriс of the other house ; and nn, who is the master of the house, ought to have placed his
The lots of the plaintiff and defendant adjoin eаch other. And the case finds, that the plaintiff’s cellar was dug fourteen years ago, and water was then found, and in about two years afterwards an excavátion was made in the earth, in the place where the well now stands, about three feet deep, and a barrel was inserted, and the water rose to the surface. Afterwards the defendant dug to obtain water in his own soil, and in a place where it was convenient for him, near to the well of thе plaintiff, and after the defendant’s well was dug, the water ceased to flow into the plaintiff’s well, so copiously as it did before. It is for this alleged injury that the action is brought.
Then it is to be сonsidered, whether the plaintiff has proved any such easement, as she claims to hаve in the soil of the defendant. She does not pretend, that there has been any written grant from the defendant. She relies upon the use, as evidence from which a jury should presume a grant ; and there is no other circumstance to be relied upon. But by our law, the right of thе plaintiff to control the operations of the defendant on his own soil must, in the absence of a written agreement, be made out by an adverse possession continued рeaceably under a claim of right for twenty years at the least. In the present cаse such proof is wanting. There is not evidence of any adverse use or possessiоn at all. For the defendant had no means of knowing that the plaintiff’s well was supplied by springs in the defendant’s soil, until the defendant dug for water there for his own use. He sustained no injury by the use which thе plaintiff made of the water she found in her own well; and the use, if it had been adverse, has not been continued for twenty years. Indeed there is nothing in the case at bar which limits or restrains the owners of these estates, severally, from having the absolute dominion of the soil, extending upwards and below the surface so far as each pleases ; each, however, by the law, being held so to operate below the surface as not to cаuse the soil to fall in from the adioming estate. These rights should not be exercised from merе manee ; and
Now the сase finds, that the defendant dug his well in that part of his own ground,- where it would be most convenient for him. It was a lawful act, and although it may have been prejudicial to the plaintiff, it is damnum absque injuria.
Judgment on the verdict.