Opinion of the Court.

[37 App

NATIONAL METROPOLITAN BANK v. LINCOLN.

APPEAL AND ERROR.

Where judgment is entered by the lower court upon the mandate of this court, without objection or exception by the losing party, and without any offer by him of evidence necessitating a new trial, there is nothing presented for this court to review on an appeal by him from such judgment, and the judgment will be affirmed.

No. 2270. Submitted April 6, 1911. Decided May 1, 1911.

HEARING on an appeal by an intervening claimant from a judgment of the Supreme Court of the District of Columbia dismissing its petition of intervention in an attachment proceeding, in accordance with a previous mandate of this court. Affirmed.

The facts are stated in the opinion.

Mr. Jackson H. Ralston, Mr. Frederick L. Siddons, and Mr. William E. Richardson for the appellant.

Mr. Percival M. Brown, Mr. Charles W. Clagett, and Mr. Walter B. Guy for the appellee.

Mr. Justice VAN ORSDEL delivered the opinion of the Court:

This case was here on a former appeal. 35 App. D. C. 363, 30 L.R.A. (N.S.) 1215. For a review of the facts, reference is made to the opinion filed therein. The present appeal is from a judgment entered in favor of the appellee upon motion of his counsel for the dismissal of appellant's intervening petition, and for judgment upon the mandate of this court.

It does not appear from the record that appellant offered to

produce additional evidence necessitating a new trial, or that any objection was interposed to the entry of judgment upon the mandate, or exception taken to the action of the court in. granting the motion. In the absence of any exception properly appearing in the record, there is nothing presented for this court to review. Young v. Martin, 8 Wall. 354, 19 L. ed. 418. The judgment of the court below is affirmed, with costs, and it is so ordered. Affirmed.

BALTIMORE & OHIO RAILROAD COMPANY v.

THOMAS.

EASEMENTS; SURFACE WATER; COURTS.

1. Under the common law (which, where not changed by statute, is in force in this District, sec. 1, D. C. Code, 31 Stat. at L. 1189, chap. 854), although not under the civil law, where unusual conditions do not exist, an upper estate has no natural easement in the lower estate, to discharge over the latter all surface water flowing or accumulating on the upper; and the lower owner is not bound to maintain natural conditions to the extent of taking care of the surface water coming from the land above him.

2. Decisions of the court of appeals of Maryland in 1888 and thereafter are not controlling on this court.

No. 2278. Submitted April 10, 1911. Decided May 1, 1911.

HEARING on an appeal by the defendant from a judgment of the Supreme Court of the District of Columbia, on verdict, in an action by a property owner for damages for a trespass upon real estate. Reversed.

The facts are stated in the opinion.

Mr. George E. Hamilton, Mr. Michael J. Colbert, Mr. John W. Yerkes, and Mr. John J. Hamilton for the appellant.

Mr. Wilton J. Lambert, Mr. Rudolph H. Yeatman, and Mr. G. L. Whitford for the appellee.

Mr. Justice ROBв delivered the opinion of the Court:

This is an appeal from a judgment upon verdict for the plaintiff, Mary E. Thomas, appellee here, in an action for damages to certain lots of ground in this District, which sloped toward the right of way of the defendant, the Baltimore & Ohio Railroad Company, the damages being occasioned by an embankment or fill which it was alleged, and the evidence tended to prove, obstructed the flow of surface water and caused the same to remain upon plaintiff's premises.

It is at once apparent that the controlling question is whether an upper estate has a natural easement in the lower, to discharge over the lower all surface water flowing or accumulating on the upper; in other words, whether the lower owner is bound to maintain natural conditions to the extent of taking care of the surface water coming from the land above him. Walker v. New Mexico & S. P. R. Co. 165 U. S. 593, 41 L. ed. 837, 17 Sup. Ct. Rep. 421, was a case arising in New Mexico, and involved the question here in issue. In stating the question Mr. Justice Brewer, delivering the opinion of the court, said: "Does a lower landowner, by erecting embankments or otherwise preventing the flow of surface water on his premises, render himself liable to an upper landowner for damages caused by the stopping of such flow? In this respect the civil and common law are different, and the rules of the twe laws have been recognized in different states of the Union,-some accepting the doctrine of the civil law, that the lower premises are subservient to the higher, and that the latter have a qualified easement in respect to the former, an easement which gives the right to discharge all surface water upon them. The doctrine of the common law on the other hand is the reverse, that the

lower landowner owes no duty to the upper landowner, that each may appropriate all the surface water that falls upon his own premises, and that the one is under no obligation to receive from the other the flow of any surface water, but may, in the ordinary prosecution of his business and in the improvement of his premises by embankments or otherwise, prevent any portion of the surface water coming from such upper premises." After reviewing the cases supporting the common-law doctrine, the court held that the legislature of New Mexico, having adopted the common law as the rule of practice and decision, and there being no special statutory provisions in respect to the question in issue, the common-law doctrine obtained in that jurisdiction. The court was careful to intimate that it may be necessary to modify the rule in cases involving a hilly region, where, from the natural formation of the surface of the ground, much water, in times of excessive rains or heavy snows, is forced to seek a channel through gorges or narrow valleys. Such unusual conditions, however, do not exist in the present case.

While the writer of this opinion is impressed with the justness of the rule of the civil law, he is constrained to concur with the other members of the court, that the common-law rule here applies. Under sec. 1 of the Code [31 Stat. at L. 1189, chap. 854], the common law and all British statutes in force in Maryland on the 28th of February, 1801, are continued in force, except in so far as inconsistent with or replaced by some provision of the Code. There was no statute in force in Maryland on the day named, nor is there any provision of the Code, inconsistent with the common-law rule, as above defined by the Supreme Court. Our attention has been directed to certain de cisions of the court of appeals of Maryland, commencing in 1888 (Hitchins Bros. v. Frostburg, 68 Md. 100, 6 Am. St. Rep. 422, 11 Atl. 826, and Philadelphia, W. & B. R. Co. v. Davis, 68 Md. 281, 6 Am. St. Rep. 440, 11 Atl. 822), but we do not deem it necessary to examine those decisions for the purpose of ascertaining whether they are in conflict with the above rule, since, owing to their date, they cannot affect our decision.

Vol. XXXVII.-17.

We hold, therefore, that the common-law rule obtains in this jurisdiction. Judgment must be reversed, and the cause remanded for further proceedings. Reversed and remanded.

WYNKOOP v. SHOEMAKER.

EVIDENCE; VENDOR AND PURCHASER; REAL ESTATE BROKERS; APPEAL AND ERROR; ESTOPPEL.

1. In an action by the buyer to recover money deposited under a contract to purchase land, it is not prejudicial error for the trial court, after the buyer has testified that other parties had agreed to join him in the enterprise, to permit the defendant to ask him the location of such parties; nor is it error for the court to admit in evidence, on the offer of the defendant, a letter written by the plaintiff to the defendant after the expiration of the option granted by the contract, where the contents of the letter have some bearing upon the question whether an objection made by the plaintiff to the title to the land was made in good faith; and it is not reversible error to admit in evidence the reply of the defendant to such letter, although it is not material, if there is nothing in it prejudicial to the plaintiff. Letters written by the plaintiff to the defendant, after the expiration of the option granted, and containing merely self-serving declarations of the plaintiff, and the record of an equity suit relating to the land in question, and commenced after the expiration of the option, are properly excluded when offered by the plaintiff. 2. Authority to a real estate agent by his principal, to contract for the sale of land, does not authorize the agent to make a contract for the sale of an option to purchase the land. (Following Mannix v. Hildreth, 2 App. D. C. 259, and Jones v. Holladay, 2 App. D. C. 279.) 8. Where a contract to sell land is signed by the executors of a former owner, and during its life their broker notifies the purchaser that the heirs are competent to convey, and will do so upon his compliance with the terms of the contract, and the purchaser does not request any other evidence of the approval of the heirs, or attempt to show, in an action by him against the broker to recover money deposited by him at the time he signed the contract, that the heirs disapproved the contract, it is not competent for the purchaser to raise the