132 BOABD OF AGRICULTURE. 



it, following no defined channel, is deemed by the law abso- 

 lutely to belong to the owner of the land upon which it is 

 found, for the avowed purpose of enabling him to cultivate 

 his land, by controlling or draining it oil' in the mode most 

 convenient to him ; and it is not affected by any right in the 

 owner of an adjoining river, pond or tank, which it may 

 chance for the time to feed, though that time be ever so long 

 protracted. It is not water in a water-course, or in an infi- 

 nitesimal number of minute water-courses, in the sense of 

 being obedient to the law regulating the use of water flowing 

 in such defined natural channels ; but is in the eye of the law, 

 as well as of common sense, the moisture, and a part of the 

 soil with which it intermingles to be there used by the owner 

 of the soil, if to his advantage, or to be got rid of iw any way 

 he pleases, if to his detriment." 



Town ofiicers are now authorized by statute in this Com- 

 monwealth to lay out suital)le drains across the land next to 

 and adjoining highways, by establishing the same by metes 

 and bounds, courses and distances, similar to the location of 

 town ways, and the question occurs. What right have the town 

 authorities to construct drains or culverts at common law, 

 and beyond or in addition to this statute right ? No doubt 

 exists as to their right to construct them within the limits of 

 the highways ; and if in consequence of such construction the 

 surface water collects and forces itself upon the land of the 

 adjoining owner, it has been held to give him no right of 

 action, inasmuch as that should have entered into the elements 

 of damage, when he was awarded damages for the laying out, 

 lowering or altering said highway, as one of the incidents 

 necessarily pertaining to it. 



And on the other hand, if the said owner of land can pre- 

 vent the flowing of the surface water upon his land through 

 the drain or culvert so built on a highway, either by raising 

 the surface of his own laud or by stopping up the mouth of 

 the culvert, he may do so without laying himself liable to an 

 action, provided he can do it upon the limits of his own land, 

 and then the surface water must be disposed of in some other 

 way. The reason of the rule is, that one individual cannot 

 acquire any such right to turn surface water over the land of 

 another, and if one who owns the fee has no such right, there 



