of property who accumulates water on his premises is an insurer of the safety of his neighbors. In that case the defendant constructed a reservoir on his property, unknowingly locating it over an unused mine shaft. The water broke through the abandoned shaft, and it poured into the plaintiff's mine, causing damage. The defendant was held to be liable for the damage caused, the court of the exchequer through Blackburn, J., saying: "We think that the true rule of law is that the person who, for his own purposes, brings on his lands, and collects and keeps there, anything likely to do mischief if it escapes, must keep it in at his peril, and, if he does not do so, is prima facie answerable for all damage which is the natural consequence of its escape. He can excuse himself by showing that the escape was owing to the plaintiff's default; or perhaps that the escape was the consequence of vis major, or the act of God; but as nothing of this sort exists here, it is unnecessary to inquire what excuse would be sufficient. The general rule, as above stated, seems on principle just." The decision of the court of exchequer was upheld by the House of Lords, Lord Cranworth, saying in part: "If a person brings or accumulates on his land anything which, if it should escape, may cause damage to his neighbor, he does so at his peril. If it does escape, and cause damage, he is responsible, however careful he may have been, and whatever precautions he may have taken to prevent the damage."

Evans v. Manchester, S. & L. R. Co. (1886) L. R. 36 Ch. Div. (Eng.) 626, while it involved seepage from a canal rather than ponded water, was important in that it reaffirmed and followed Fletcher v. Rylands. In that case the owner of a cotton mill brought an action to recover for damage caused to his property by seepage of water from the defendant's canal. The court held the defendants to be liable on precisely the same reasoning as that of Fletcher v. Rylands.

c. Modified rule.

In several jurisdictions, either by

action of the court or by statute, the rule of Fletcher v. Rylands has been modified, and the owner of premises who ponds water thereon is no longer considered an insurer for the safety of his neighbors, but liable for damage only where he has been negligent in the construction or maintenance of his pond or reservoir. Nagel v. Madere (1881) 1 McGloin (La.) 325; Murphy v. Gillum (1898) 73 Mo. App. 487; Moore v. Berlin Mills Co. (1907) 74 N. H. 305, 11 L.R.A. (N.S.) 284, 124 Am. St. Rep. 968, 67 Atl. 578, 13 Ann. Cas. 217. See also Scott v. Longwell (1905) 139 Mich. 12, 102 N. W. 230, 5 Ann. Cas. 679.

In Nagel v. Madere (La.) supra, it appeared that water held in an artificial pond on the defendants' rice fields seeped on the plaintiff's land, causing injuries to his crops, for which he sought damages, and also an injunction against the alleged nuisance. The court found that the defendants were pursuing a lawful occupation, had complied with all legal requirements relative to their rice flume, and had taken all necessary precautions to protect adjoining proprietors from injury by percolation, and, there being therefore no negligence the defendants were not liable.

In Murphy v. Gillum (1898) 73 Mo. App. 487, it appeared that the defendant maintained an artificial pond on his premises from which water seeped on the plaintiff's land for which the plaintiff sought to recover damages. The court expressly disavowed the rule of Fletcher v. Rylands, holding that, in order to constitute the defendant liable, negligence must be proved. As the plaintiff was unable to prove negligence either in the construction or maintenance of the pond, he failed to recover.

In Moore v. Berlin Mills Co. (1907) 74 N. H. 305, 11 L.R.A. (N.S.) 284, 124 Am. St. Rep. 968, 67 Atl. 578, 13 Ann. Cas. 217, the facts were that the defendant had formed a reservoir on his land by the erection of a dam, and the plaintiff, claiming that his crops had been injured by seepage from the reservoir, brought an action for damages. The court denied the plaintiff

a recovery, holding that, as long as no injury was inflicted through negligence, the defendant had the right to use its property in any way it saw fit.

In Scott v. Longwell (Mich.) supra, it appeared that the water in the defendant's mill race seeped and percolated into the plaintiff's cellar and land, causing injuries for which she sought damages. The court cited Fletcher v. Rylands to the effect that no amount of diligence was a legal excuse, but refused to determine the correctness of that doctrine, on the ground that, there clearly being negligence on the defendant's part in keeping the mill race repaired, the

defendant was liable.

d. State or municipal liability. Apparently, the only case dealing with the liability of a state for damage by seepage and percolation from ponded water is Reed v. State (1888) 108 N. Y. 407, 15 N. E. 735. In that case it appeared that the state of New York had constructed a reservoir for the purpose of using it as a feeder for the Erie canal. The plaintiff claimed that, due to the negligence of the engineers employed in not making the bottom of the reservoir watertight, his property had been damaged by seepage from the reservoir. In holding the state to be liable for the damage caused, the court based its decision on a state statute under which the state assumed liability for all damage suffered by any individual or corporation from the use or management of the canals of the state, or resulting from the negligence of any officer of the state having charge thereof, or from any accident or other matter or thing connected with the canals, in a case where the facts proved would create a legal liability against the state were the same established against an individual or corporation. That the facts proved did establish a cause of action the court recognized, saying: "The attempt to collect a large body of water into a limited space surrounded with a porous and gravelly soil, without taking any adequate precaution to confine it to the receptacle prepared for it,

was, upon the face of it, an inexcusable act of negligence in those having charge of such work, and cannot be justified under the known laws governing the motion of fluids."

The cases concerning the liability of a municipality appear to be confined to Massachusetts, but there does not seem to be any degree of uniformity in the decisions of that state.

In Wilson v. New Bedford (1871) 108 Mass. 261, 11 Am. Rep. 352, the plaintiff brought an action for damage caused to his property by percolation from the defendants' reservoir. The court citing and following with approval the case of Fletcher v. Rylands, held that when one brought or accumulated anything on his premises which would cause damage to his neighbor if it escaped, he did so at his peril, and was liable in the event of any damage, regardless of what precautions were taken.

In Kennison v. Beverly (1888) 146 Mass, 467, 16 N. E. 278, it appeared that a city had constructed an artificial basin for the purpose of collecting water from the drains. The plaintiff brought an action for damage to his property caused by percolation of water from the basin. The court held than an injury of that sort was similar to one caused by a town or its agents in flooding adjoining property with surface water while engaged in repairing or constructing highways, and that, as no recovery for damage could be had in the latter case, the plaintiff could not recover.

Aldworth v. Lynn (1891) 153 Mass. 53, 10 L.R.A. 210, 25 Am. St. Rep. 608, 26 N. E. 229, was very similar in point of fact to Wilson v. New Bedford (Mass.) supra, in that the plaintiff claimed damage to his land by seepage from a reservoir maintained by a city. However, Wilson v. New Bedford did not appear to have been considered by the court in that case, as no mention of it was made. The court held the city to be liable, but declared obiter that if the city could have shown that all reasonable precautions had been taken in the construction and maintenance of the reservoir, and that nothing had been done wantonly

On the other hand, in Texas & P. R. Co. v. O'Mahoney (1900) 24 Tex. Civ. App. 631, 60 S. W. 902, it was held that the market value of land actually injured or destroyed was the correct measure of damages.

A third view was adopted in Marshall v. Trullinger (1877) 6 Or. 356, and in Welliver v. Irondale Electric Light, Heat & P. Co. (1909) 38 Pa. Super. Ct. 26. In those cases the courts held that the cost of restoring the property to its former condition was the measure of damages allowable, and any testimony which showed the cost of putting the land in its former condition was admissible.

Several states have adopted statutes providing for the condemnation of land to be used for dams and reservoirs, and have included therein provisions for bringing before commissioners all adjoining property owners whose lands may be damaged by overflow or seepage, and computing and paying to them sums sufficient to cover any future damage that they may suffer. Denver City Irrig. & Water Co. v. Middaugh (1899) 12 Colo. 434, 13 Am. St. Rep. 234, 21 Pac. 565; Wilson v. Hanthorn (1887) 72 Iowa, 451, 34 N. W. 203; And see the reported case (HEALEY V. CITIZENS' GAS & E. Co. ante, 1226).

In Denver City Irrig. & Water Co. v. Middaugh (Colo.) supra, it was held that the plaintiff could not bring a common-law action for damage to his land by percolation and seepage from the defendant's reservoir, under the claim that the condemnation proceedings had made provision only for damage by overflow. He should have had that corrected at the time of the condemnation proceedings, and obtained his damages then for future injuries by percolation and seepage.

In Wilson v. Hanthorn (1887) 72 Iowa, 451, 34 N. W. 203, the plaintiff brought an action for damage suffered by seepage from the defendant's dam, claiming that, at the time of taking out a license for erecting a dam, the defendant had not brought his name before the commissioners to have his future damage from seepage computed, and paid to him as the statute

required. The court held that, since the plaintiff's land was located 6 miles from the defendant's dam, it could not reasonably be presumed he would be damaged, and that the defendant was not at fault on that account, and since the only recovery for damage could be obtained by appearing at the proper time before the commissioners, the plaintiff could now recover nothing.

However, in the reported case (HEALEY V. CITIZENS' GAS & E. Co.) the court modifies the rule to the extent of letting those who had not been compensated for future damage recover, holding that only those whose names had been brought before the commissioners, and who had been reimbursed for future damage, were barred from later bringing an action for damages.

IV. Abatement and injunction. Frequently when a person brings an action for damage suffered by seepage or percolation, he also seeks to enjoin the defendant from maintaining the ponded water until he has taken steps to prevent a recurrence of the damage to the plaintiff by seepage and percolation from such ponded water. 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; Nagel v. Madere (1881) 1 McGloin (La.) 325; Slote v. Constantine Hydraulic Co. (1914) 182 Mich. 260, 148 N. W. 665; Schwarzenbach v. Electric Water Power Co. (1905) 101 App. Div. 345, 92 N. Y. Supp. 187 (affirmed in (1906) 184 N. Y. 546, 76 N. E. 1108); Evans v. Manchester, S. & L. R. Co. (1886) L. R. 36 Ch. Div. (Eng.) 126.

In Slote v. Constantine Hydraulic Co. (1914) 182 Mich. 260, 148 N. W. 665, supra, a temporary injunction was granted which was later dissolved by reason of the defendant filing a bond conditioned to pay any damages which might be assessed against it.

Sometimes an injunction is the only relief sought. Sylvester v. Jerome (1893) 19 Colo. 128, 34 Pac. 760; Esson v. Wattier (1893) 25 Or. 7, 34 Pac. 756 (discussed in II. b.).

In Kippen v. Grant County Mill. Co.