Flanders v. Franklin , 70 N.H. 168 ( 1899 )

If the defendants unreasonably turned surface water upon the plaintiff's land, thereby invading his property right, they must answer for the consequences. Rhobidas v. Concord, ante, p. 90. They were not obliged to prevent the natural flow of surface water; and if they did nothing to increase it, they are not liable. If they increased the quantity of water and unreasonably failed to provide an outlet, they are liable. Rindge v. Sargent, 64 N.H. 294. The fact that there would have been an outlet but for the acts of Shepard is no defence. If he unreasonably stopped the natural flow, he must answer therefor; but this would not make him liable over to the defendants for what is here complained of. They had no right to demand the use of a natural watercourse across his land to carry off water collected by them. If their conduct in failing to guard against the danger which they created was unreasonable under the circumstances, they are liable, although their conduct might have been reasonable under other circumstances.

If [It] does not distinctly appear whether the verdict for the plaintiff was founded upon a failure to control the natural flow of surface water, or upon an unreasonable failure to take care of an artificial flow created by the defendants. For this reason the case must stand for a further trial.

The question, whether the acts were those of officers over whom the defendants had no control, and for whose acts they were not responsible, was not raised and has not been considered.

The plaintiff's proposed amendment was objected to both as insufficient in law and offered at too late a day. It would seem that justice requires that the plaintiff should be allowed to restate his claim before the case again goes to trial. The question of amendment will be settled at the trial term.

Case discharged.

All concurred.