Gillet v. Johnson, 30 Conn. 180, not indispensable to the existence of a watercourse, that the banks and clearly-defined bed of the same should be discernible throughout its whole course. In the last case, where a watercourse, in passing over low, flat lands, spread itself out, so as not to break the surface of the ground, it was nevertheless regarded as still retaining its character of a watercourse. But in the principal case there seems to have been nothing of this character in the mere overflow of the drain by the temporary increase of the water and its consequent diffusion upon the adjoining field. The rules of law as to the rights of landowners in reference to surface-water, are clearly and justly stated by BEASLEY, C. J., in Bowlsby v. Speers, 2 Vroom 351. "There is," said the learned judge, "no such thing known to the law, as a right to any particular flow of surface-water jure naturæ. The owner of land may, at his pleasure, withhold the water falling on his property from passing in its natural course on to that of his neighbor, and in the same manner may prevent the water falling on the land of the latter from coming on to his own." The right to discharge, or to receive the surface-water, can have no legal existence, except from a grant express or implied. The point decided in this case was, that it was not actionable in the defendant to obstruct, by means of necessary erections upon his own land, the free discharge of surface-water coming from the plaintiff's land, and thereby causing it to flow back upon and damage the plaintiff's land. This must be regarded as damnum absque injuria. And the fact that some portion of this water comes, in times of freshet and extraordinary rains or melting snows, from a natural basin, where the surface-water accumulates and sometimes overflows, will Inake no difference. But one level owner cannot justify draining his sur face-water, at a particular point, upon the land of his neighbor, in order to render his own land more useful: Butler v. Peck, 16 Ohio N. S. 334; Miller v. Laubach, 47 Penna. 154. But in the latter case it was held the landowner may drain the excess of surface-water from his own land into a stream running through it, without exposing himself to an action at the suit of the proprietors below. This general subject is ably discussed by COLT, J., in Wheeler v. City of Worcester, 10 Allen 591, in regard to the responsibility resulting from the erection and continuance of public works, along and across natural streams of water, consequent upon the changing currents and varying points of the discharge of surface-water into such streams. And railways are not at liberty to drain off from their tracks an excess of surface-water produced by excavating for their road-bed and thus opening up underground springs, and throw the same upon the land of adjoining proprietors not embraced in the land condemned for the use of the road, unless such act becomes absolutely necessary for the continued operation of the road, and in such case it must be done in a manner least injurious to the adjoining proprietors: Curtis v. The Eastern Railway Co., 14 Allen 55. In Goodale v. Tuttle, 29 N. Y. 459, DENIO, Ch. J., said: "In respect to the running off of surface-water caused by rain or snow, there is no principle which will prevent the owner of land from filling up the wet and swampy places on his own soil for its amelioration and its own advantage, because his neighbor's land is so situated as to be incommoded by it." This well settled doctrine of the right of the landowner to guard his soil against the damaging effects of surfacewater flowing from his neighbor's land, even at the expense of damaging his Beighbor's land by throwing the surfacewater back upon it, is somewhat severely condemned by BREESE, Ch. J., in Gilham v. Madison County Railroad Company, 49 Ill. 484, where the learned judge thus characterizes the rule of law maintained in the principal case: "The doctrine of these cases wholly ignores that most favored and valuable maxim of the law, Si utere tuo ut alienum non lædas, a maxim lying at the very foundation of good morals and so preservative of the peace of society." But that estimable man and wise magistrate, as well as learned and accomplished jurist, will be as ready as any one, we doubt not, to recognise the counter maxim of the law, that in the social state, we are all constantly exposed to innumerable losses, at the hands of others, where we have no redress, the loss being damnum absque injuria, and that the benevolent maxim of the civil law to which he refers was never intended to demand of any one to treat his neighbor better than himself, or to forego the use of his own property lest he might cause loss to others. The same rule in regard to surfacewater, which we have before stated, is very ably stated and maintained by JOHNSON, J., in Waffle v. N. Y. Central Railroad Co., 58 Barb. 413, where the learned judge said-" Every person has the unquestionable right to drain the surface-water from his own land to render it more wholesome, useful, or productive, or even to gratify his taste or will, and if another is inconvenienced, or incidentally injured thereby, he cannot complain. No one can divert a natural watercourse and stream through his land, to the injury of another, with impunity; nor can he by means of drains or ditches, throw the surface-water from his land upon the land of another, to the injury of such other. But when a person can drain his own land without turning the water upon the land of an other, or when it can be done by drains emptying into a natural stream and watercourse, there can be no doubt of his right thus to drain, even though the effect may be to increase the volume of water unusually, at one season of the year, or to diminish the supply at another." "No one can be required to suffer his land to be used as a reservoir or water-table for the convenience or advantage of others." This principle is laid down by all the judges in Rawstron v. Taylor, 11 Exch. 269; in Goodale v. Tuttle, supra; and in Miller v. Laubach, supra. There seems to be no ground to question the right of landowners to drain marshes and swamps upon their own lands into streams running through them, and mill-owners upon the stream below, who are damaged thereby, in two respects, 1st, by having the flow of water so increased, in times of high water, that they cannot run their mills, by reason of the excess of water; and 2d, in having the stream fall below the quantity requisite to carry the mill, at a much earlier time in the season than it would otherwise do, have no cause of action, their loss being damnum absque injuria: Waffle v. N. Y. Central Railroad Co., supra. In Beard v. Murphy, 37 Vt. 99, the right of the landowner to obstruct the flow of surface-water from the adjoining land upon his own is placed upon somewhat lower ground than most of the other cases require, i. e. that it was rendered necessary to his own protection against impurity which the adjoining owner had thrown into such surface-water. The opinion of Mr. Justice BENNETT, in Chatfield v. Thilson, 28 Vt. 49, is pronounced by BALCOM, J., in Trustees v. Yoemans, 50 Barb. 316, "one of the ablest opinions on the subject in the books;" but as we have had occasion to say before, and in note to Basset v. Salisbury Man. Co., 3 Am. Law Reg. N. S. 223, 239, it pushes one point beyond the established rules of law, viz., the right of the landowner to do acts upon his land for the mere purpose of damaging his neighbor. We might pursue this inquiry much further, but having before given it some attention in another New Hampshire case, Basset v. Salisbury Man. Co., supra, we forbear longer trespass upon the patience of our readers. It must be conceded, we think, that the right of landowners to deal with surface-water and all water mixed with the soil, or coming from underground springs, in any manner they may deem necessary for the improvement or better enjoyment of their own land, is most unquestionable. And if by so doing, in good faith and with no purpose of abridging or interfering with any of their neighbor's rights, they necessarily do damage to their neighbor's land, it must be regarded as no infringement of the maxim sic utere tuo ut alienum non lædas, but must be held damnum absque injuria. I. F. R. Court of Appeals of Maryland. HENRY JANES v. EDWARD F. JENKINS. The owner of two adjoining lots, which may be designated as the East and West lots, leased the former for the renewable term of ninety-nine years, at a certain yearly rent, and in the lease covenanted that the lessee should have the right and privilege to make openings and place lights in the wall which he contemplated erecting on the western line of the property leased. The wall was erected and openings were made and lights placed therein, which overlooked the West lot. Subsequently the lessor conveyed the reversion in the East lot and premises to the lessee thereof, in fee, and by this deed were granted with the lot all buildings and improvements thereon erected, "and all and every the rights, alleys, ways, waters, privileges, appurtenances, and advantages to the same belonging, or in anywise appertaining." Afterward the owner of the West lot conveyed the same, in fee, to a third party, the deed containing a covenant of special warranty. On an action brought by the vendee of the West lot against the vendor for an alleged breach of the covenant of special warranty, it was Held: 1st. That the conveyance to the vendee of the East lot, passed the full right to the free use and enjoyment of the lights in the wall as they then existed, as an incident and appurtenance to the land conveyed; and that such right as appurtenant to the premises will pass therewith to all successive owners of the property. 2d. That the vendee of the West lot took it with the servitude annexed for the benefit of the East lot, and the existence of this servitude, and the enjoyment thereof by the owner of the East lot, constituted no breach of the covenant of special warranty. Whenever an owner has created and annexed peculiar qualities and incidents to different parts of his estate (and it matters not whether it be done by himself, or his tenant by his authority), so that one portion of his land becomes visibly dependent upon another for the supply or escape of water, or the supply of lignt and air, or for means of access, or for beneficial use and occupation, and he grants the part to which such incidents are annexed, those incidents thus plainly attached to the part granted, and to which another part is made servient, will pass to the grantee as accessorial to the beneficial use and enjoyment of the land. APPEAL from the Circuit Court for Baltimore County. The facts are stated in the opinion of the Court. Arthur Geo. Brown and Geo. Wm. Brown, for the appellant. Arthur W. Machen, for the appellee. The opinion of the court was delivered by ALVEY, J.—The questions in this case arise upon a demurrer to the declaration of the plaintiff below, who is the appellant in this court. The action was one of covenant, brought on a supposed breach of a covenant of special warranty, contained in a deed from the appellee to the appellant, dated the 29th of April 1867, for a house and lot on Monument street, in the city of Baltimore. It is shown by the declaration, that the appellee was owner in fee of two adjoining lots, which may be designated as East and West lots, fronting on the south side of Monument street, and that, on the 4th of May 1860, he leased the East lot to Joseph W. Jenkins, for the renewable term of ninety-nine years, at the clear yearly rent of $486; and in which lease was a covenant that the lessee should have the right and privilege to make openings and place lights in the wall which he contemplated erecting on the western line of the property leased; such lights to be at least five feet above any floor over which they might be opened. The wall was erected, and, in pursuance of the privilege granted, openings were made and lights placed therein, which overlooked the West lot that was subsequently conveyed to the appellant. After the erection of the wall, and placing therein the windows, the appellee, by deed of the 29th of April 1863, conveyed the reversion in the East lot and premises to Joseph W. Jenkins, in fee, for the consideration of $8100, and all rent then in arrear. By this deed, were granted with the lot all buildings and improvements thereon erected, made, or being, "and all and every the rights, alleys, ways, waters, privileges, appurtenances, and advantages to the same belonging, or in anywise appertaining." The covenant of special warranty contained in the deed of the 29th of April 1867, to the appellant, for the West lot, is to the effect that the appellee shall for ever warrant and defend the property, conveyed to the appellant, against the claims and demands of the grantor, and all persons claiming by, through, or under him. The breach alleged, is the existence of the windows in the wall erected on the western line of the East lot, overlooking the West lot conveyed to the appellant, "whereby and in consequence whereof the said plaintiff has been molested and hindered in, and excluded from, the free and unobstructed use, possession, occupation, and enjoyment of the said property conveyed to him as aforesaid, and said plaintiff, in consequence of the premises, has likewise been, upon notice from said Joseph W. Jenkins, hindered and prevented from building up to or near to the easternmost line of his said property, and has also been prevented from selling or disposing of the same for its proper value, in consequence of said easement and encumbrance thereon." Upon these allegations, being admitted by the demurrer, two questions are presented: First, what passed to Joseph W. Jenkins, the grantee of the Eastern lot and premises; and, secondly, if the owner of that lot be entitled to the enjoyment of the lights placed in the wall on the western boundary thereof, does the covenant of special warranty afford the appellant, the owner of the Western lot, a remedy in damages for the existence of such an easement in his premises? 1. As to the first of these questions, it must be observed that the lights were placed in the wall at a time when the appellee was owner of the reversion in the lot, and that it was done by his express authority and agreement for a consideration. He could not, therefore, during the continuance of the lease, and as owner of the adjoining lot, interfere with or prevent the full and free enjoyment of the easement thus created. But, by the subsequent conveyance of the reversion, whereby the leasehold estate was merged, did the right to this easement, or quasi easement, cease to exist? The lights were then in existence, and were used and enjoyed as appurtenant to the Eastern lot, and had been placed in the wall by the authority and under the grant of the appellant, while he was owner of the reversion; this is not different, in principle, from the cases of the owner of two adjoining heritages, selling one, or of the owner of an entire heritage, selling and granting part; in which the law would seem to be well settled, that by the grant of the adjoining heritage, or part of an entire |