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If the condition is not destructive of health, and is only an ordinary effect of a use of the sort to which the neighborhood is devoted, it furnishes no valid legal cause of complaint. For instance, the rumbling of factory machinery on land next to Chase's may cause great annoyance to him. If his home is on his lot, the noise of the factory may render it wholly uncomfortable; or if he carries on some mercantile pursuit, the factory may seriously interfere with it. Nevertheless, if the neighborhood is devoted to manufacturing or to equally noisy uses, and if Chase's neighbor is adding no new element to the ordinary annoyances of the neighborhood, Chase's rights are not violated. If he is not satisfied with his location, he should move elsewhere and put his lot to more congenial uses (6). But this justification that the annoying use is being prosecuted in a proper neighborhood is of no avail if the particular effects of which Chase complains are not of a sort ordinary in the neighborhood. In a recent English case, Polsue v. Rushmer (7), the facts were: Defendants had established a printing machine in a house adjoining plaintiff's residence. The district was devoted to the printing and allied trades. The operation of the defendants' machine did not appear to be unreasonable as compared with that of other machines in the neighborhood; but defendants ran their machine at night, and the trial judge found that this caused a new disturbance and a substantial increase of plaintiff's discomfort. The House of Lords affirmed a decision in

(6) Gilbert v. Showerman, 23 Mich. 448.
(7) [1906] 1 Ch. 234; [1907] App. Cas. 121.

favor of plaintiff on the ground that this was a new burden upon plaintiff's enjoyment of his property.

§ 15. Same: Justification of public authority. 2. The other common justification is particular public authorization. Legislation constitutionally may legalize many things that otherwise would constitute actionable nuisances. For instance, after the decision of Davis v. Sawyer (§ 13, above), the legislature passed a statute authorizing manufacturers and others to give notice to their employees by ringing bells or blowing whistles in accordance with a written license previously obtained from the town authorities. The defendants in Davis v. Sawyer thereupon obtained a license to ring their bell as they had previously done and commenced proceedings in court to have the injunction decreed against them in that suit dissolved. In Sawyer v. Davis (8) the state supreme court held that the law was constitutional and that on the case presented the injunction should be dissolved. Another instance of the effect of governmental authorization is afforded in the case of railroads. Many of the incidents of railroad operation which otherwise would constitute actionable nuisances to land-possessors in the neighborhood of the right of way may be rendered legal by the fact that the government has specifically authorized the operation.

§ 16. No right of way for passage, pipes, ditches, or wires across neighbor's land. A land-possessor has no right or liberty of passage across the lands adjoining his, even though he has no other means of ingress and egress

(8) 136 Mass. 239.

to and from his lot, unless he or his predecessors in title have secured such a way through grant, agreement, prescriptive user or otherwise. In the absence of such an acquired right, to infringe his neighbor's boundary line without permission is to commit an actionable wrong. Neither has he, independently of prescription, grant, devise, agreement, etc., any right to lay pipes or dig ditches or string wire across the land of his neighbors or to use pipes, ditches, or wires already there. He has no right of drainage across neighboring land except through natural water-courses (see § 21, below), and, in some jurisdictions, for surface water over lower lands according to the natural conformation of the ground.

§ 17. Right of drainage for surface water. In jurisdictions where the right to have surface water flow off over lower lands in a natural way is recognized, the possessor of the lower land commits a legal wrong if he prevents this natural drainage, except that he legally may interfere with it in the reasonable course of improving a town or city lot. The possessor of the upper land may accelerate and even perceptibly increase the flow by filling in depressions on his own lot, but he commits a wrong if he gathers the water in large quantities and discharges it at one place onto his neighbor's land with harmful results. This is sometimes called the civil law rule.

In some of our jurisdictions this right of natural drainage for surface water does not exist. In these jurisdictions each land-possessor legally may permit or even accelerate within reasonable limits, the natural flow, as indicated above; but, on the other hand, the lower possessor

is not bound to receive the water. He may erect barriers preventing it from passing his boundary line, and, though this results in a flooding of the upper land, he is within his rights. This is sometimes called the common law rule. In Bates v. Smith (9), an owner of a lot just below a parish burial ground had erected a barrier to prevent the flow of surface water over his lot from those adjoining. The result was that the burial ground was flooded by the accumulation of surface water upon it and some tombs were threatened with inundation. The members of the parish committee thereupon made an opening through the barrier to drain the burial ground. It was held that this was a wrongful trespass on their part, since the possessor of the lower lot had a right to keep the water off his lot by the embankment although this caused flooding of the land above. If the facts of this case had occurred in a jurisdiction where a right to surface drainage in the upper owner is recognized, the decision would have been different.

§ 18. Percolating water. The use and benefit of water percolating underground may be a very valuable incident of the ownership of land. It is evident that this use may be interfered with by the operation of persons possessing other land through which the water takes its course. For instance, the possessor of a tract can sink wells and by means of strong pumps draw the subsurface water from a large area of the surrounding country. This was done by Brooklyn in a farming district outside the city in 1885 and 1894. Various suits by possessors of land in the vi

(9) 100 Mass. 181.

cinity followed. One of these, Forbell v. New York (10), brought by the lessee of certain farming lands, for damage to his crops and to the land for farming purposes through diminution of the moisture in the soil, is a leading case on the law of percolating waters. It was held that the city was making an unreasonable use of the water, from the standpoint of the conflicting claims of all concerned, with damaging results to the plaintiff which it might have anticipated, and that therefore it was liable. The so-called doctrine of "reasonable user" of percolating waters for which this case stands seems to be finding favor with the courts of our jurisdictions. However, the decisions that have been made concerning this reasonable user leave so much of the law of percolating waters undetermined and indefinite that a satisfactory statement of it is impossible. Following is some indication of what has been settled.

§ 19. Same: Right of reasonable use. Examples. In most of our jurisdictions at least, a person commits a wrong by drawing off percolating waters from land without any reasonable excuse and thus interfering with the use of the land or a legitimate use of the water. In some, if not all, of these jurisdictions, the same is true if the water is diverted from flowing in its natural course to the land unreasonably, with resulting similar interference. What would be a reasonable excuse and what an unreasonable diversion or withdrawal is left indefinite in most particulars; and perhaps ultimately we shall have

(10) 164 N. Y. 522.

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