delivered the opinion, of the court.
This аction was brought by the plaintiff to recover damages of the defendant, which it was charged were caused by the negligent turning of alargebody of water, by the defendant, upon and over the lands of the plaintiff.
The petition, after stating that the defendant was a corporatiоn owning and operating a railroad in Buchanan County, and that the plaintiff was the owner of a tract of land adjoining to and on the west side of said railroad, proceeded to state, that on the east side of said railroad and opposite plaintiff’s land, a large quantity of surface water was accustomed to stand and remain in a large pond, covering a surface of several acres, and that, during heavy rains, the surface water would flow in great quantities from the hills east of said railroad and pond with great force, down on the wet land eаst of said road and opposite plaintiff’s land as above mentioned ; and that, “during such heavy rains, a certain branch or creek,' known as Contrary Creek,” which flowed in a westwardly direction across said road, would overflow its banks, east of said railroad, and a groat portiоn of the surplus water of said creek flowed over said low and wet land in manner so that the said surface water and said surplus water from said creek formed a large body of water east of said railroad, where the same joins plaintiff’s said land.
Plaintiff further states “that on or about thе month of June, A. D., 1871, defendant negligently and maliciously cut an artificial channel from said pond or body of water through the embankment of its said railroad bed, and drained all of said body of water on to plaintiff’s said land, so that the surface water which had flowed from the said hills and the surrounding lands, which was caused by a very heavy rain storm, and the surplus water which overflowed with great force from said creek, flowed with great force and violence on plaintiff’s land,
The defendant in its answer denies the allegations of the petition and then sets up as a defense to the action, that in, the construction of the railroad, the right of way to the road bed of said railroad had been condemned under the statute in such case made and provided, setting forth all of the facts required in order to a legal condemnation of said road bed, and that the damages assessed for the appropriation of said land to the use of the road had been paid; that the damages so assessed and paid included whatever damages could or might be done to plaintiff’s land by the building and construction of said railroad, and all embankments thеreon, and all drains and channels under said embankment necessary to the proper construction and maintenance of said railroad ; and that the channel mentioned in said petition was necessary to the use and maintenance of said road.
To the last defense set up in the answer the plaintiff replied denying the same. The bill of exceptions does not set out the evidence in the case, but simply states that the plaintiff introduced evidence tending to prove the material allegations in his petition, and that the defendant offered evidence tending to prove the allegations set up in the second defense to the petition. The evidence offered by the defendant was objected to by the plaintiff as being immaterial and going to prove no defense to the plaintiff’s action. This objection was оverruled and the plaintiff excepted.
At the close of the evidence, the plaintiff asked the court to give the jury several instructions which were all refused by the court, one of which was as follows: “The court instructs the jury that i f they believe from the evidence that the defendant сollected a large body of surface water on the east side of its railroad by the embankment of said road as charged in
The other instructions asked by the plaintiff need not be noticed, as part of them are admitted to be impropеr and the others contain the converse of those asked for and given on the part of the defendant, which are as follows :
1st. “If the jury believe from the evidence, that the culvert made by the defendant in its road bed was not made maliciously and for the sole purpose of maliciously injuring plaintiff, then defendant is not liable for any injury caused by water passing through such culvert into plaintiff’s land.”
2d. “Defendant had the right to protect its road-bed against overflow and surface water from rains, and for that purpose to make all such banks or culverts as it deemed proper ; and if the jury believe from the evidence that the injury done plaintiff was by the passage of water from overflow or rains, through a culvert made by defendant through its road bed, they will find for the defendant, unless they believe that such culvert was not necessary for the protection of defendant’s road bed, but was constructed for the purpose of injuring plaintiff.”
3d. “ If the jury find that, prior to the injury complained of by the plaintiff, the right of way for defendant’s road was acquired by defendant by condemnation at law of the land on which said road was located through the tract оf which plaintiff’s land is a part, then plaintiff cannot recover for darm ages caused by the flow of water through said road bed into his land.”
These instructions were objected to by the plaintiff and exceptions taken to the ruling of the court in giving the sameas well as in refusing the instructions asked for by the plaintiff. The plaintiff then suffered a non-suit, with leave to move to set the same aside, which motion was afterwards made and
Tbe only question presented for the consideration of tins court by tbe record in this ease, grew out of tbe action of tlie Circuit Court in giving and refusing instructions asked for by tbe respective parties ; for if tbe instructions given on tbe part of the defendant were properly given, tbe evidence objected to by tbe plaintiff was рroperly received.
There is no doubt but that tbe authorities of towns and cities, whose duty it is to keep tbe streets and public ways in good repair for tbe use of tbe public, may repair tbe same in a reasonable manner, without incurring any liability to adjoining proprietors, even thоugh said improvements may cause a change in the natural flow of surface water to their injury ; but if such a corporation should engage in works of private utility to tbe corporation, and' not solely for public use, and private property of another is injured thereby, tbe cоrporation would be liable just to the same extent and under tbe same circumstances that private persons would be liable for tbe same acts.
Tlie general rule, however,, is, that either municipal corporations or private persons may so occupy and imрrove their land, and use it for such purposes as they may see fit, either by grading or filling up low places, or by erecting buildings thereon, or by making any other improvement thereon, to make it fit for cultivation or other profitable or desirable enjoyment ; and it makes no difference thаt the effect of such improvement is to change tbe flow of the surface water accumulating or falling on tbe surrounding country, so as to either increase or diminish tbe quantity of such Avater, which had previously floAved upon tbe land of tbe adjoining proprietors, to their inconvenience or injury. (Ang. "Wat. Corn's., p. 122, § 108 and following, and cases there cited; Goodale vs. Tuttle,
In the present case the plaintiff complains that the defendant had so constructed its road that the embankment made therefor had collected a large body of surface and overflowеd water on the east side of its road bed where the same adjoined the land of plaintiff; and that, after said water had been so collected in a large body or pond, the defendant negligently and maliciously cut an artificial channel from said body of water through the embankmеnt of its road bed, and drained all of said large body of water on to plaintiff’s land, by which plaintiff was damaged, etc.
The first instruction asked by the plaintiff told the jury in effect, that if the plaintiff did this act charged in the petition, in the manner therein charged, plaintiff had a right .to re
The jury are told by the first instruction given by the court at the instance of the defendant, that the act of the defendant in making the culvert and turning the body of water on the land of the plaintiff must have been done b_y the defendant maliciously and for the sole purpose of maliciously injuring plaintiff, in order to a recovery on the part of the plaintiff. I cannot see upon what principle the doctrine contained in this instruction can be uphеld. If the act was unlawful and negligent, or reckless, it certainly makes no difference whether it was maliciously done, or what object the defendant had in view, except as to the amount of damages.
The second instruction given by the court is subject to the same objection. The jury аre told by it that the plaintiff cannot recover unless' the acts done by the defendant were done for the purpose of injuring the plaintiff.
It is further contended by the defendant, that if the plaintiff was damaged by the acts complained ofj such damages were included in the assessment оf damages to the owner of the land in condemning the road bed of defendant across the tract of land of which plaintiff’s land forms a part, and that therefore no recovery can be had on this action.
It seems to me that that proposition would depend on the questiоn whether the act done was lawful or unlawful in itself. The defendant had- a right to construct its road and to
We think that the authorities on the subject are consistent with the view here taken of the second defense of the defendants; and any other construction, it seems to us, would be manifestly unjust. The plaintiff’s motion to set aside the non-suit taken in the case should have been sustained.
The judgment will be reversed and- the cause remanded.