to this. Lands are overflowed by mill ponds, and, instead of an action at common law, a process is provided by statute for the recovery of damages, quite similar to the process in this case. In Monson & B. Mfg. Co. v. Fuller, 15 Pick. 554, it was decided that damages occasioned by the percolation of water through the earth from the pond to neighboring uplands, and causing them to produce poorer grass or a smaller quantity of grass, could be recovered. In Fuller v. Chicopee Mfg. Co. 16 Gray, 46, it was decided that damages occasioned by raising the pond, so as to affect injuriously the water of the plaintiff's well, were recoverable; and no distinction was made as to whether it affected the well by overflowing or percolation. This principle is just, for the water often injures land which it never overflows; and, where the soil is porous, the water may by percolation render a dwelling house uninhabitable, or destroy the value of large tracts of land. Upon the same principle, it was held in Ball v. Nye, 99 Mass. 582, 97 Am. Dec. 56, that it was actionable to cause filthy water to percolate from the defendant's vault through his own soil and thence into his neighbor's soil, and thus injure his neighbor's well and cellar. In Pixley v. Clark, 35 N. Y. 520, 91 Am. Dec. 72, the same principle was held in regard to water which percolates through the banks of a reservoir created by erecting a dam across a stream, and damages the plaintiff's land. . The cases cited from Vermont are, to some extent, in apparent conflict. They do not seem to distinguish between natural and artificial causes of injury."

The Rylands and other cases make such distinction. In one of the cases quoted in the Wilson Case it was said: "If water naturally rising in the defendant's land had by percolation found its way down to the plaintiff's mine through the old workings, and so had impeded his operations, that would not have

afforded him any ground of complaint.' 'But that is not the real state of the case. The defendants, in order to effect an object of their own, brought onto their land, or onto land which for this purpose may be treated as being theirs, a large accumulated mass of water, and stored it up in a reservoir. The consequence of this was damage to the plaintiff, and, for that damage, however skilfully and carefully the accumulation was made, the defendants, according to the principles and authorities to which I have adverted, were certainly responsible.""

See also, as sustaining the Wilson Case, Gorham v. Gross, 125 Mass. 232, 28 Am. Rep. 224, and Cahill v. Eastman, 18 Minn. 324, Gil. 292, 10 Am. Rep. 184.

The

The Pixley Case and some of the other cases hold that there is no difference in flooding one's land, whether it is by overflowing,__or (underflowing) percolation. water reaches the land, and injures or destroys its use in either event. The point is illustrated by Mr. Justice Peckham in the Pixley Case, in this way substantially: If the point of a knife reaches a man's heart it is wholly immaterial whether he is stabbed through the breast, or under the arm. Appellee's answer to this is that either way would be unlawful. Appellee in argument stresses the point, and the trial court assumed, that because defendant had, by condemnation or otherwise, acquired the right from landowners other than plaintiffs, to build the dam and back up the water, their action was lawful, and that it was engaged in a lawful enterprise. By condemnation, and the payment of damages, defendant would have the right to back up the water in the river by artificial means. The payment of such damages might cover percolation as well as overflows, so far as such parties are concerned, unless Code, § 1933, prevents a bar if unforeseen. But the question arises, Would it be lawful as to these plaintiffs? They had never been made parties to condem

nation proceedings; it is not claimed that defendant had any grant from them. We think that as regards plaintiffs it is as though defendant had not condemned or acquired a grant from other riparian or ad

jacent landowners.

Eminent domain Plaintiffs were not

-right to dam backwatereffect on nonparties.

bound by any proceedings as to the others. It may have

been difficult for defendant to determine just what landowners they should make parties to the condemnation proceedings, but they surely cannot, by omitting to make landowners who are or may be injured parties, acquire any right to flood the lands of persons not made parties. If this could be done they could flood the land of the plaintiffs with water 5 feet deep, thus taking their property without compensation or due process. We have recently had a case bearing on this question, where the rule is recognized that condemnation is not exclusive except where a person is made a party, and that in some cases he may sue for damages. Brown v. Davis County, 196 Iowa, 1341, 1348, 195 N. W. 363. See also Hunting v. Curtis, 10 Iowa, 152.

The appellants also cite and rely on the Iowa dam statutes which will be referred to later in the opinion. We have made an independent investigation, to some extent, as much as our time will permit, of cases following and differentiating the Pixley Case. These too will be referred to later.

Appellee cites Quinn v. Chicago B. & Q. R. Co. 63 Iowa, 510, 513, 19 N. W. 336; Moore v. Berlin Mills Co. 74 N. H. 305, 11 L.R.A. (N.S.) 284, 124 Am. St. Rep. 968, 67 Atl. 578, 13 Ann. Cas. 217; Scott v. Longwell, 139 Mich. 12, 102 N. W. 230, 5 Ann. Cas. 679; Wilson v. Hanthorn, 72 Iowa, 451, 34 N. W. 203; Dunsmore v. Central Iowa R. Co. 72 Iowa, 182, 33 N. W. 456; Fleming v. Lockwood, 36 Mont. 384, 14 L.R.A. (N.S.) 628, 122 Am. St. Rep. 375, 92 Pac. 962, 13 Ann. Cas. 263; Howell v. Big Horn Basin Col

38 A.L.R.-78.

onization Co. 1 L.R.A. (N.S.) 596, and note (14 Wyo. 14, 81 Pac. 785); Bridgeford v. Colorado Fuel & I. Co. 63 Colo. 372, 167 Pac. 963; Gilbert v. Showerman, 23 Mich. 448.

Appellees appear to rely most strongly on the Quinn Case, which they claim is an Iowa case in point. It seems to us the case does not sustain appellee's contention. The court did say at one point in the opinion: “On principle, it would seem that the plaintiff ought not to recover for such damages, if they resulted from the lawful and reasonable use by the defendant of its own lot."

But the point decided was that where one, through some unlawful or unreasonable use or sufferance, allows water to collect upon his lot, and by percolation through the soil it reaches his neighbor's property and renders it less valuable, he becomes liable to the latter for the damages sustained by him on account thereof. Damages were alleged to have been sustained by reason of an excavation in the earth, and by water collecting and standing therein. There was a verdict for plaintiffs, the cause was reversed because the court did not limit the recovery for a certain time. The court said: "The evidence shows that such damages, if any, resulted from water percolating through the soil. The rule is well settled that no action can be maintained for the diversion of percolating water, where the act of diversion is done by the owner of the premises where done, and is done in good faith. But the injury complained of in this case did not arise from the diversion of percolating water from where it was wanted, as from a well or spring, but from so collecting water that it reached by percolation to where it was not wanted, to wit, to a cellar, and to the foundation walls of a house. It is to be observed, also, that during the continuance of the nuisance, the defendant was without excuse in suffering the water to remain. The defendant was under constant obligation to remove

it, and the plaintiff had reason to suppose that it would remove it. During that time it was not for the defendant to say that the injury being sustained by the plaintiff was not actionable, because merely incidental to the exercise by the defendant of its own rights. While

we think that the instruction asked went too far, and was properly refused, the court should, we think, have submitted the question as to whether the defendant became guilty of a nuisance as alleged in the petition, and should have instructed the jury that, in case they so found, they might allow the plaintiff for such injury as her premises sustained from the percolation of water from the excavation after the same became, and while it remained, a nuisance."

In the instant case, while it may be true that defendant was not required to remove its dam, still it was within its power to, by proper proceedings, acquire the right to flood the land of the plaintiffs, or, failing in this, to pay damages. The Quinn Case was tried upon the theory that defendant was causing a nuisance. Appellant in the instant case does not plead that the dam and pond in question constituted a nuisance. But the facts are stated, and the facts in some respects are similar to those in the Quinn Case. Under the new Code, § 7782, the dam may be a nuisance under some circumstances, or possibly so without the statute. This is not controlling in this case because defendant already had a license, and yet may have a bearing in the interpretation of prior statutes. And yet § 7795 of the New Code requires existing dam owners to secure a permit. In State v. Close, 35 Iowa, 570, it was held that the dam, when erected in accordance with the statute, will not be a nuisance, but may be so erected and maintained as to become such.

The opinion in the Quinn Case proceeds on the theory that the nuisance there was one that could be abated and the damages continuing.

The Quinn Case refers to the reasonable use of defendant's own lot. This is so, too, in other cases cited by appellee; and counsel for appellee argue the proposition as to the reasonable use of its property. We may as well say here that there is no evidence before us on the question as to whether defendant was, or was not, using its property in a reasonable way. The question seems not to have been raised by the pleadings, or considered by the court in the instructions. The court seems to have determined that question as a matter of law, because defendant had acquired a right to construct its dam by proceeding against certain persons. True, the statute (Code 1897, § 1930) required a finding before the license should issue, that the dam was rea- Dams-reasonasonable and for the bleness ofpublic benefit. This Anding for would not necessa

license.

rily show that the use of the dam thereafter was reasonable, and especially as to the use of the water under plaintiffs' premises, if that was the question, or damming the water was a reasonable use, within the meaning of the cases. The trouble about it is, at this point, that plaintiffs, not having been made parties to condemnation proceedings, are not bound by such a finding. Unreasonable use of water under plaintiffs' premises would not necessarily be negligence. It would simply be using more water than adjacent owners would be entitled to.

It is not a question here as to defendants using more water from plaintiffs' lands than they are entitled to, but whether the defendant, by its dam in the river, may back the water up on the plaintiffs. If there was evidence on the question of reasonable use, then under cases for jurycited by appellee reasonable use that would be a question for the jury. Moore v. Berlin Mills Co. 74 N. H. 305, 11 L.R.A. (N.S.) at pages 286, 287, 124 Am. St. Rep. 968, 67 Atl. 578, 13

Trial-question

of stream.

Ann. Cas. 217, supra. See also Franklin v. Durgee, 71 N. H. 186, 58 L.R.A. 112, 51 Atl. 911. In the Moore Case there was evidence "tending to show that the defendant was using its mill property in a reasonable manner with reference to the plaintiff's land." There was some question in that case, also, as to whether defendant failed to prevent continued percolation after learning of the injury. There is nothing of that kind in this case, as it comes to us, and we have seen that some of the cases before cited hold that the question of knowledge is not material. It appears from the opinion in the Moore Case, and other New Hampshire cases cited therein, that the supreme court of that state has repudiated the doctrine of Fletcher v. Rylands. In the Moore Case plaintiff sought to recover damages occasioned by water which defendant, by means of its dam across the river, causes to percolate through the ground and into the soil of plaintiff. Between the river and plaintiff's land, a railroad owned a strip of land about 100 feet wide through which the water percolates before it reaches the plaintiff's sand pit. The court said: "Hence it follows that the plaintiff cannot complain that the defendant's dam obstructs the natural flow of the river or interferes with her riparian rights. So far as she is concerned, the defendant must be deemed to be the rightful owner of flowage rights in the river; and those rights are property rights, in the enjoyment of which it is entitled to the same protection accorded to the owners of real estate generally. The retarded flow of the water in the river produces an artificial reservoir, which the defendant has the right to maintain and enjoy as its property; and the case does not materially differ from what it would be if the defendant had constructed a reservoir on its own land for some useful purpose, and water from it had, by percolation, finally reached the plaintiff's land and damaged her sandpit."

The case is doubtless in point for appellee, that is, it would be in point if there was any question in the instant case as to the reasonable use of defendant's property, and knowledge by it of the injury, as in the Quinn Case, and yet it does not appear that there was any statutory provision in that state regulating milldams. The opinion refers to the riparian rights of the plaintiff. We shall see later that the Iowa statute regulating rights of dam owners is not limited to riparian owners whose land abuts on the river. Furthermore, the proposition in the latter part of the quotation just made seems to be contrary to our holding in the Quinn Case, supra. The effect of the holding in the Moore Case was that the trial court should not have applied the rule of Fletcher v. Rylands without qualification as to the reasonable use, without negligence, by the defendant of its property. In applying this rule, and to sustain the conclusion, the court quoted from another New Hampshire case, to the effect that it would be a surprise to those engaged in manufacturing operations, and to the legal profession, "to hold that, in case of the breaking away of such reservoirs, there is no question of care or negligence to be tried," etc. It occurs to us that the question of the breaking away of a dam is a different proposition, and would involve the question of negligence. The court in that case also used this language: "But when there was no fault on his [defendant's] part, and the damage was not caused by his voluntary and intended act, or by an act of which he knew or ought to have known the damage would be a necessary, probable, or natural consequence, or by an act which he knew, or ought to have known, to be unlawful, we understand the general rule to be that he is not liable."

This involves three propositions, intention or knowledge or unlawfulness. In that case there was also involved the question of reasonable use of defendant's property. Build

ing a dam is voluntary and intentional. Scott v. Longwell, 139 Mich. 12, 102 N. W. 230, 5 Ann. Cas. 679, does not sustain appellee's contention. The point was not decided. In that case defendants maintained an artificial mill race. Plaintiff owned a residence adjacent thereto. At certain times the water from the race seeped through the banks into plaintiff's cellar and on her land. A recovery by plaintiff was affirmed. The case is somewhat similar to our Quinn Case. The court said: "The precise obligation imposed by law. upon one who collects waters in an artificial reservoir is a subject of grave dispute. In Rylands v. Fletcher, L. R. 1 Exch. 265, 1 Eng. Rul. Cas. 235-Exch. L. R. 3 H. L. 330, 6 Mor. Min. Rep. 129, 1 Eng. Rul. Cas. 256, it was declared that no amount of diligence is a legal excuse, if such water escapes and damages another. The correctness of this doctrine has been much discussed by law writers and courts. It has been approved in Massachusetts (Gorham v. Gross, 125 Mass. 232, 28 Am. Rep. 224) and Minnesota (Cahill v. Eastman, 18 Minn. 324, Gil. 292, 10 Am. Rep. 184). It has been disapproved in other states. We need not, however, in this case, as we shall point out, undertake to determine its correctness."

The court then states the rule as to the care required of a person who collects water in an artificial reservoir, and then said: "In view of the undisputed fact that such a race was likely to leak on account of the scraping and cracks, I think that we could safely say, as a matter of law, that defendants were negligent in not taking proper precautions to prevent the water escaping.

If defendants were entitled to have the jury charged that their obligation was only that of ordinary care, the instructions preferred are faulty, in that they undertake to state those circumstances, and state them incorrectly, to plaintiff's prejudice."

In that case, defendants also

urged that they had a right to do the acts complained of as wrongful by virtue of a reservation in a deed and by prescription. The court said that these were affirmative defenses, and not admissible under the general issue. To get the facts of that case before us, we shall quote further from the opinion: "In our judgment, under the peculiar circumstances of this case, the giving of these requests would have misled the jury and diverted them from the precise question in controversy. To make this clear, a somewhat more detailed statement of the case is necessary. Plaintiff complains of being damaged by the escape of water from the race, not on ordinary occasions, but on two extraordinary occasions. . . Preceding

these occasions, the race had been emptied for several months; that on the second of these occasions defendants scraped the bottom of the mill race, and cleaned out the rubbish which had accumulated therein. The undisputed testimony, and it comes from defendants' millwright,

is that 'a mill race, when first constructed, is likely to leak, and after it has stood for some time the mud will work so it will be watertight. The effect of drawing off the water would be nearly the same as scraping, as a new construction. So that, after it stands a while empty, when the water is turned back in, it will seep-water-soakthrough, to a certain extent, on account of the ground cracking deep if left dry for some time. If dry a short time and scraped, it would have the same effect as a new construction.' This testimony affords the explanation of plaintiff's injury, for her property was not flooded, except when the water was turned in after the race had for a long time stood empty, on the occasions specified. This testimony is also im portant as indicating the obligation imposed upon defendants."

In that case plaintiff's claim was bottomed upon negligence, and the court held that this was sufficiently averred in the petition.