statute under which the license was obtained, neither the question of fact as to the percolation nor as to the overflow is vital to the case."

On the question as to what landowners should be made parties to condemnation proceedings, the court said: "When a person desires to utilize a water power and erect a mill, there should be some way in which he can proceed with safety. The law allows private property to be taken in consideration of the public benefit resulting from a mill. It points out how land may be taken, and a license procured.

The person seeking a license must file a petition giving the names of the persons whose lands 'will be overflowed, or otherwise affected thereby.' The question presented is as to what lands are contemplated as affected. Of course, those are contemplated which will be affected directly by the dam. Injuries thus accruing can be foreseen with such reasonable certainty that it is practicable to bring the landowners in and make them defendants and ascertain their damages. But how about those whose lands are not directly affected, and never can be affected, except by the concurrence of contingent causes which cannot be foreseen, and much less practically estimated?"

Under the facts in that case, it was held that plaintiff was not entitled to relief. We understand the court to have ruled as it did because of the facts. Some of the conditions increasing the backwater occurred after the dam was constructed. It appeared that plaintiff's land was about 4 miles distant from the dam in a straight line, and 6 miles by the course of the river, and about

of a mile distant from the river at the nearest point. There was no complaint for fifteen years. During the last few years the bed of the river had been elevated somewhat by the deposit of sediment. The land for some distance from the river had become wetter than formerly, and there had been places where it had been impracticable at times to

raise crops.

Plaintiff attributed

this in part to overflow from the river, and in part to percolation through the soil. It did not appear that the dam, at the time it was erected, caused any damage to the plaintiff's land. At the time of the condemnation proceedings it was assumed that the land would not be overflowed or otherwise affected, and the owner was not made a party. There was a slough through plaintiff's land. The water in the slough is about 3 feet higher than the water in the dam, and plaintiff's land is 3 feet higher than the water in the slough. The court held that the plaintiff's land could not have been overflowed by reason of the dam. Plaintiff's theory was that the injury complained of was the result of natural causes occurring within the last six years, which causes were rendered injurious by reason of the dam erected fifteen years before. He affirmatively disclaimed that the land was injured by the erection of the dam alone, without the concurrence of other causes, and he did this to avoid the defendant's plea of Statute of Limitations.

In the instant case there is an entire lack of evidence on this subject. Practically all shown is that defendant had acquired a grant to flood lands of others; that water was backed up and percolated through the soil to plaintiffs' land. There is no showing as to levels, character of the soil, defendant's knowledge of such things at and before the condemnation, or anything else bearing on the question as to whether, at that time, defendant could have foreseen that plaintiffs' lands would be affected. Can it be said that in every case, or in this case, in the absence of evidence, that because plaintiffs were not made parties to the proceedings, defendant at the time could not fore

see that omitted Dams-mill actbinding effect of lands would be af- license on persons not parties

fected, and there- to proceeding. fore it was not necessary to make them parties? We

think not. We find that ordinarily, and in the absence of statute, a license regularly issued is a defense to any proceeding to abate or remove the dam, or for damages to riparian owners, and a bar to the granting of any subsequent application for a similar privilege which would destroy the rights already accorded. But to have this effect it is necessary to show a strict compliance with all the directions of the statute, and a valid order. 40 Cyc. 667. Doubtless we should presume, under the record in this case, that the statute was complied with, and yet, as before stated, there is no evidence bearing on the question as to conditions, and whether it could be foreseen that plaintiffs' lands would be affected. We shall refer to our own statute in a moment as to whether the proceedings are a bar.

In Fleming v. Hull, 73 Iowa, 598, 602, 35 N. W. 675, the constitutionality of the dam statutes was questioned. The court said: "If such statutes were enacted now for the first time, it is possible, if not probable, that they could not be sustained."

And at page 601 (35 N. W. 676) : "If the statute is unconstitutional, the whole proceeding is void, and no right whatever was or can be obtained thereunder."

If the statute is void, defendant has no grant. This question is not argued, and we shall give it no further consideration.

Section 1933, before quoted, was not considered in the case of Wilson v. Hanthorn, supra. It seems to us it has a very important bearing. As we read this statute the condemnation proceedings are not a bar to plaintiffs, unless the for milldam bars action was actually foreseen and estimated upon the inquest. As said, there is no evidence on the question as to whether it was foreseen or whether the circum

-when license

action for resulting injury.

stances were such as that it should have been foreseen. In Lummery v. Brady, 8 Iowa, 33, decided under this statute, complainants had been awarded compensation by the sheriff's jury. Thereafter complainants brought an action at law and recovered other damages. They then brought an action in equity to restrain defendants from flowing back the waters of the river by their dam upon plaintiffs' lands. The court held that plaintiffs were not entitled to an injunction. The court said: "The damages awarded to complainants may, as alleged by them, not have been foreseen and estimated by the jury on the inquest. In such event the judgment for damages is no ground for an injunction against the owners of the milldam; it does not affect their rights under their license; but is to be considered rather as compensation for injuries not foreseen or estimated by the jury upon the inquest, as permitted by the statute, to be recovered in such action at law; and, in this view, may be rather considered as a confirmation of the license granted to defendants."

See also Watson v. Van Meter, 43 Iowa, 76.

We have gone into the matter more extensively than intended. Without further prolonging the opinion, we think the action is more like an action for nuisance, and that the Pixley and like cases relied upon by appellant are the better reasoned and more numerous; and that the trial court erroneously assumed as a matter of law that defendant had the lawful right. liability for Under the record as percolation made, the question as to damages from percolation should have been submitted to the jury.

Reversed.

from milldams.

Arthur, Ch. J., and Evans, Stevens, Faville, and Vermilion, JJ.,

concur.

I. Scope, 1244.

II. Liability for damage:

a. In general, 1244.

b. Rule of Fletcher v. Rylands, 1244.

c. Modified rule, 1247.

1. Scope.

The discussion in this annotation is confined solely to damage by percolation and seepage from an artificial body of water, such as a pool, reservoir, or body of water formed by a dam. For liability for damage by water escaping from a pipe line, see the annotation in 14 A.L.R. 552.

II. Liability for damage.

a. In general.

Possibly the earliest case involving the question of damage by percolation from ponded water was Monson & B. Mfg. Co. v. Fuller (1834) 15 Pick. (Mass.) 554. In that case, which was an action for damage to the plaintiff's land from flowage of the defendant's dam, the court allowed the jury to assess additional damages against the defendant for injury from percolation, under a statute which allowed damages to be assessed for anything incidental to the injury on which the cause of action was founded.

The courts do not appear to be in accord on the question of one's liability for damage caused by percolation or seepage from ponded water on his premises. One line of decisions holds him to be an insurer, and therefore liable, even in the absence of negligence, for any damage not caused by the injured person himself, or by an act of God, or by vis major. Another line of decisions holds him liable only when a lack of due care is shown on his part.

b. Rule of Fletcher v. Rylands. The English rule, better known as the rule of Fletcher v. Rylands (set out infra), which has been followed in many American jurisdictions, makes

II. continued.

d. State or municipal liability, 1248.
e. Effect of grant or prescriptive
right, 1249.

III. Measure of damages, 1249.
IV. Abatement and injunction, 1250.

one who collects water on his premises an insurer of the safety of his neighbors, and relieves him from liability for damage from percolation or seepage of such water only when the damage results from the fault of the injured person, or from an act of God, or from vis major. The fact that he may have used the greatest care, and have been wholly free from negligence, does not free him from liability. California. Parker v. Larsen (1890) 86 Cal. 236, 21 Am. St. Rep. 30, 24 Pac. 989; Kall v. Carruthers (1922) 59 Cal. App. 555, 211 Pac. 43. Colorado. Sylvester v. Jerome (1893) 19 Colo. 128, 34 Pac. 760; Canon City & C. C. R. Co. v. Oxtoby (1909) 45 Colo. 214, 100 Pac. 1127; Bijon Irrig. Dist. v. Cateran Land & Livestock Co. (1923) 73 Colo. 93, 213 Pac. 999.

See the reported case (HEALEY V. CITIZENS' GAS & E. Co. ante, 1226).

Cahill v. Eastman

(1866) L. R. 1 Exch. 265, 4 Hurlst & C. 263, 1 Eng. Rul. Cas. 235, affirmed in (1868) L. R. 3 H. L. 330, 6 Mor. Min. Rep. 129, 1 Eng. Rul. Cas. 256; Evans v. Manchester, S. & L. Ry. Co. (1886) L. R. 36 Ch. Div. 626.

While Parker V. Larsen (Cal.) supra, was a case concerning seepage from an irrigation ditch, it appears to be a leading case on the subject of this annotation, and is therefore presented here. In that case it appeared that the plaintiff had suffered damage from seepage from the defendant's irrigation ditch, and in consequence sought to recover therefor. The court held the defendant to be liable, saying: "The water which did the injury to plaintiff was not a natural stream flowing across defendant's land, but was brought upon the land by artificial means. And the rule is general that, where one brings a foreign substance on his land, he must take care of it, and not permit it to injure his neighbor. The law upon the subject is tersely expressed in the maxim, Sic utere tuo ut alienum non lædas."

In Kall v. Carruthers (Cal.) supra, the plaintiff sought an injunction and damages on account of injuries suffered by his land from the percolation of water from an artificial pool on adjoining property, such pool being maintained for the purpose of irrigating a rice field. In granting the injunction and holding the defendant to be liable for damages, 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 Fletcher v. Rylands (1866) L. R. 1 Exch. 265, 4 Hurlst. & C. 263, 1 Eng. Rul. Cas. 235, affirmed in (1868) 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 effect of this doctrine is everywhere conceded to make every person who brings a foreign substance upon his property an insurer against all damage that may result by reason of its presence on his property.

But confining ourselves for the pres

ent to its relation to the water question, we think we may say the doctrine is generally accepted both here and in England, with the modification that an act of God may be interposed as a defense, such as extraordinary disturbances of the elements resulting in floods and earthquakes, in the breaking of ditches, reservoirs, etc., and this exception was declared in the recent case of Sutliff v. Sweetwater Water Co. (1920) 182 Cal. 34, 186 Pac. 766."

In Sylvester v. Jerome (1893) 19 Colo. 128, 34 Pac. 760, it appeared that the defendant had made an artificial pond on his premises, which was kept filled by diverting to it a natural stream. On account of the gravelly bottom of the pond, water percolated through to the plaintiff's property, causing damage. The plaintiff sought to enjoin the defendant from diverting the stream into his pond until some measures had been taken to prevent percolation, and, in granting this injunction, it was pointed out by the court that the state statute making an owner of a reservoir liable for damages from leakage or overflow was an affirmation of the common-law rule that it was the owner's duty to refrain from injuring anyone, and that absence of negligence on the owner's part was no defense.

Affirming Sylvester v. Jerome (Colo.) supra, to the effect that the commonlaw rule prevailed in Colorado, and that the statute was merely an affirmation of it, was the case of Canon City & C. C. R. Co. v. Oxtoby (1909) 45 Colo. 214, 100 Pac. 1127. It appeared in that case that the plaintiff had suffered damage by seepage of water from the defendant's reservoir. The defense of the defendant, that it had used due care and was guilty of no negligence, was ignored, and the defendant was held to be liable for the damage. See also Bijon Irrig. Dist. v. Cateran Land & Livestock Co. (1923) 73 Colo. 93, 213 Pac. 999.

In the reported case (HEALEY V. CITIZENS' GAS & E. Co. ante, 1226) the court, after a very lengthy and exhaustive discussion of the authorities, arrives at the view that the owner of

a dam is liable for damage caused by percolation, although free from all negligence in the construction and maintenance of the dam.

Cahill v. Eastman (1872) 18 Minn. 324, Gil. 292, 10 Am. Rep. 184, appears to be one of the leading cases in support of the rule of Fletcher v. Rylands. In that case it seemed that the defendants dug a tunnel into which a river broke. The water in the tunnel, by erosion and seepage, undermined the property of the plaintiff, for which he brought an action for damages. It was held that the defendants were liable for the damage caused, irrespective of any question of negligence.

In Pixley v. Clark (1866) 35 N. Y. 520, 91 Am. Dec. 72, it appeared that seepage from a body of water formed by the defendants' dam did great damage to the plaintiff's premises, for which he sought redress. The defendants were held to be liable for the damages suffiered by the plaintiff, the court saying: "It is, therefore, not that the defendants have unreasonably, negligently, unintentionally, unnecessarily, or unexpectedly flowed the plaintiff's land, to his injury for their benefit, that they are liable. is simply because they have done it in fact, they have done it by their works, and it cannot be charged to extraordinary floods."

It

Esson v. Wattier (1893) 25 Or. 7, 34 Pac. 756, was a suit to enjoin the erection of a dam on the ground that percolation and seepage of water from the reservoir formed would make a great part of the plaintiff's land unfit for use. Although refusing to grant the injunction on the ground that the plaintiff's evidence failed to show that his property would be damaged, the court cited with apparent approval the rule laid down in Fletcher v. Rylands (Eng.); Pixley v. Clark (1866) 35 N. Y. 520, 91 Am. Dec. 72, set out supra, and Wilson v. New Bedford (1871) 108 Mass. 261, 11 Am. Rep. 352, set out infra, and said further: "The rule deducible from these authorities may be briefly stated as follows: If a person, by artificial means, raises a volume of water above its natural

level, and, by percolation or by overflow, injures neighboring lands without license, prescription, or grant from the proprietor, the latter may invoke the interposition of a court of equity, and obtain an injunction to prevent it, when he would sustain irreparable injury, or be compelled to bring a multiplicity of actions to recover the damages as they accrued."

In the case of Welliver v. Irondale Electric Light, Heat & P. Co. (1909) 38 Pa. Super. Ct. 26, it appeared that percolation and seepage of water from the defendant's mill race caused injury to the plaintiff's land, for which he sought to recover damages. The defendant claimed it was engaged in the lawful use of its property, and was guilty of no negligence. The court, while admitting that there would be no liability in the absence of negligence when the injury resulted from a use which was necessary and incidental to the development of property, held the defendant to be liable for the damage caused, on the ground that the defendant's mill race was not incidental or necessary to the development of the defendant's land, and that therefore it occupied the status of an insurer, being liable for any damage, even in the absence of negligence.

Texas & P. R. Co. v. O'Mahoney (1899) - Tex. Civ. App. —, 50 S. W. 1049 (second appeal in (1900) 24 Tex. Civ. App. 631, 60 S. W. 902), was an action for damage caused by overflow and percolation of water from the defendant's reservoir, by reason of which the plaintiff claimed his land was made unfit for use. In its decision the court said in part: "Under the facts of this case, when the defendant permitted the water to escape and destroy the land and vegetables of plaintiff, it became liable for damages occasioned thereby, regardless of the question of negligence in the construction of the dam and ditch."

The case of Fletcher v. Rylands (1866) L. R. 1 Exch. (Eng.) 265, 4 Hurlst. & C. 263, 1 Eng. Rul. Cas. 235, affirmed in (1868) L. R. 3 H. L. 330, 6 Mor. Min. Rep. 129, 1 Eng Rul. Cas. 256, appears to be the leading case in holding that the owner