By the Court, Johnson, J.
There was no error in the county court in allowing the amendment, to the extent that it was allowed, as it did not change the cause of action, or alter it in any particular. True, the complaint before the justice did, in terms, charge the defendant with breaking and entering the plaintiff’s close, but the facts which constituted the real cause of action were stated, and these showed that the injury was occasioned not .by breaking and entering,.but by opening a sluice in a highway and turning the waters in the ditch of said highway upon *196the plaintiff’s land, to his injury. The allegation of breaking and entering was clearly, upon the face of the complaint, mere surplusage, and there was no error committed in so amending the complaint as to allow the true cause of action therein stated, only, to remain.
The cause of action was plainly what would have been, formerly known as an action on the case, and it was tried as such, and no injury was done to the defendant by the amendment.
The question at issue, and which was tried, was, whether an overseer of highways has the right, in making repairs upon a highway within his district, in other respects suitable and proper, to change a natural watercourse, or the natural course of surface water drainage, so as to cast the water upon the lands of an owner abutting upon a highway. where it had not been previously accustomed to flow; or to increase considerably in volume and quantity, either the waters in a natural watercourse, or from surface drainage, flowing upon such land, to the injury of the owner thereof. We think it clear that the overseer has no such right, and hold the law so to be. This results, we think, from the nature of the right of the public in a highway. It is a mere right of passage over the soil; and although the public has the right to alter, shape and fashion its roadway, in such a manner as to render it convenient, safe and useful for the purposes of passage, still, abutting and adjoining lands, outside of the way, are not servient estates to this right of way, so as to authorize the public, through its officers, to change natural watercourses, or the natural course of surface waters in regard to such lauds, to the injury of the owners, with impunity.
The public must construct and repair their way with reference to the rights of adjoining owners of lauds. The defendant, in his answer, justified the acts complained of upon the ground that he was overseer of the highway, and that such acts were necessary for the benefit of the highway.
*197The road was a north and south road, and the water flowed northward through the ditch on the west side. The evidence showed, and the court held, that in 1862 the public had acquired, by user, a prescriptive right to have the water flow through this ditch from a point as far south as a certain butternut tree, and through the sluice which the defendant opened at the time in question, upon the plaintiff’s meadow, where it flowed at the time complained of. In 1862 a change was made, by filling up the west ditch at a point between the sluice in question and the butternut tree, and another sluice made across the road at that point; which had the effect to turn all the water coming from the south to that point, down the south ditch of an east and west road, which there intersected the north and south road. The effect of this had been to make a deep gully on the south side of the east and west road, and to render the road unsafe and dangerous to travelers. To remedy this difficulty, and to prevent further injury to the east and west road, the defendant, as overseer, filled up the new sluice, cleaned out the west ditch on the north and south road, and restored it to the condition in which it was, at that place, prior to 1862. He also reopened the sluice which, it.seems, had in the mean time become filled up or closed, so that the water in the west ditch passed through' and upon the plaintiff’s land as it had prior to 1862. The court ruled and charged the jury, that if by this last change, the defendant had only restored the west ditch and the sluice- there re-opened, to the same condition in which they were prior to 1862, and no water passed through and upon the plaintiff’s land, except what came into the ditch between the sluice through which the water passed and the butternut tree, the defendant’s acts were justifiable, and the action could not be maintained.
There was evidence in the case tending to- show, that prior to the time when the new sluice was made and the water turned down the south ditch of the east and west road, *198there was a sluice just above and south of the butternut tree, across this north and south road, by means of which all the water coming through the west ditch, south of the butternut tree, was carried across the road, and down through a natural depression in the surface of the land, upon lands owned by the defendant; and that this sluice was filled up about the time the ditch was filled up at the intersection of the east.and west road, and the sluice there made to carry the water into the ditch of the other road, the effect of which was' to bring the water from a distance ' considerably farther south than the butternut tree, and increase the volume and quantity of water in the west ditch at the point of the intersection of the east and west road and at the sluice, by which the water was carried upon the plaintiff’s meadow. It was claimed by the plaintiff, and the evidence on his side tended to show, that it was this increased volume and quantity of water which occasioned the injury, and that but .for this increase, no injury would have happened. These facts were controverted by the defendant, who gave evidence tending to prove that, for more than twenty years prior to 1862, the water had flowed through the west ditch, the same distance, from * the south, and that no change had been made within that time, by which the quantity of water flowing through that ditch had been increased. These disputed questions the court submitted to the jury, and charged that if the water from the same distance had flowed through the ditch for twenty years, the plaintiff* could not recover; but if it had not, and the injury was occasioned by the increased volume of water from the longer distance, the plaintiff was entitled to recover such damages. The jury found in favor of the plaintiff. The defendant’s counsel excepted to this part of the charge. The charge, we think, was clearly right. The defendant, doubtless, in the discharge of his official duty as overseer, had the right to make such change as he might, in the exercise of his judgment, *199deem necessary, not only by way of repair of the road, but by way of preventing further injury, provided that in so doing, he did not interfere with the rights of others.
[Fourth Department, General Term, at Buffalo,
June 4, 1872.
He might, for this purpose, unquestionably restore the way as it was when the change was made in 1862, and the public to all the rights they then had which had not become forfeited. But if he undertook to restore, he should have restored the way in all respects to the condition it was'in at and prior to 1862, and the public to the rights it then had. He had no right to leave the sluice which would carry.off water from the ditch to his own land, closed, and open the sluice which would carry, the water that should rightfully pass to his own land upon the lands of his neighbor. This the jury have found he has done.
The court properly refused to charge as requested by the defendant. The substance of that request was, that the defendant had the right to make the change for the benefit of the road, if he acted in good faith, even if it had the effect to throw more water upon the plaintiff’s land than had ever been carried there before, of than would have gone there had the entire way been restored to its former condition. This proposition, as we have undertaken to show, cannot be maintained. It must be obvious to any one, that an overseer of highways cannot, by any act of his own, either confer any new rights upon the public, or impose any new burdens upon individuals to their injury. •
The judgment, we think, is right, and should be affirmed.
Johnson, Talcott and Barker, Justices.]