Story Case

Mr. Homer and his son-in-law, Mr. Mann, owned adjoining cranberry boggs in Plymouth, Massachusetts. Much of the surface water used to flood the lot of Mr. Mann came from the property of Mr. Homer, which was of slightly higher elevation. The fall and spring of 1915 were unusually dry, and Mr. Homer told his son-in-law that it was his intention to erect a barrier on his bogg to prevent the surface water from flowing off his plants. "But," said Mr. Mann, "that will ruin my crop." "Well," replied Mr. Homer, "I am sure I have a right to do this, and as for the destruction of your crop, it is either yours or mine." Mr. Homer finally suggested that they leave the matter to their mutual friend Judge Rugg. What will Rugg decide!

Ruling Court Case. Gannon Vs. Hargadon, Volume 10 Allen, Massachusetts Reports, Page 106

Hargadon owned a lot of land lying to the west of a lot owned by Gannon. Along the easterly line of Hargadon's lot there was a by-way, which extended further to the north. On the west side of the way, and north of Hargadon's lot, a ditch had been dug, which extended down to within a few feet of Hargadon's lot. A few feet below the northerly line of Hargadon's lot there was a low place in the way, below which deep ruts had been made. During the early spring, the melting snow and rains caused a considerable flow of surface waters from the land to the north of Hargadon's lot, through the ditch, and over the way and through the ruts upon his land. Hargadon, thereupon, placed turfs in the ruts just below the low place in the way, and upon his own land, for the purpose of protecting his own land. The result of this was that the surface waters were turned upon the land of Gannon, who sues for damages.

Hargadon contended that he was entitled to make improvements to keep surface water from his land.

Mr. Chief Justice Bigelow said: "The right of an owner of land to occupy and improve it in such a manner, and for such purpose as he may choose, either by changing the surface or the erection of buildings or other structures thereon, is not restricted or modified by the fact that his own land is so situated with reference to that of adjoining owners that an alteration in the mode of its improvement or occupation in any portion of it will cause water, which may accumulate thereon by rains and snows falling on its surface or flowing on to it over the surface of adjacent lots, either to stand in unusual quantities on other adjacent lands or pass into and over the same in greater quantities or in other directions than they were accustomed to flow." Judgment was given for Hargadon.

Ruling Law. Story Case Answer

Surface waters are such as creep along the surface of the soil and have no definite or well defined channel. The owner of lower lands has no right to have surface waters come down to him, unless they have reached a definite channel. The owner of the land upon which surface waters fall may use the same to exhaustion and a lower land has no right to complain.

On the other hand, surface water is considered a common enemy, and a land owner may take any reasonable steps to keep water of this kind off, or to drain it off when once on, even though it may to some extent cause injury to a land owner below.

Mr. Homer's position was right. He had no right to cut off a stream, or start a channel of collected surface water over his neighbor's land, but surface water without denned course, he could intercept or deflect.