188 BOARD OF AGRICULTURE. [Pub. Doc. 



a cause of action in behalf of a person who suffers loss or 

 detriment from it against one who does not act inconsistently 

 with due exercise of dominion over his own soil. A man 

 may improve his own land, even though by so doing he 

 causes surface water to flow off in a new direction and in 

 larger quantities than before. 



This doctrine has had still further application in one or 

 two cases in Massachusetts, where it has been held that a 

 farmer owning lower land may fill it so that surface water 

 will back up over his neighbor's land, instead of flowing off, 

 as it had been wont to do. The only remedy for the in- 

 jured party would seem to be, in turn to fill his own land a 

 little higher than his neighbor's, and thus reverse the flow. 



As to waters percolating through the earth, it may be 

 said that one may dig a well on his own premises, even 

 though the consequence be to cut off the percolating water 

 from his neighbor's well. Whether he may do this mali- 

 ciously, for the mere purpose of injuring his neighbor, has 

 been much discussed. It was held in Maine that he could 

 not do this maliciously ; but in New York the courts have 

 held that, even though the injury is done for the mere pur- 

 pose of injury, there is no right of recovery. In Massa- 

 chusetts there was a dictum occurring in one of Pickering's 

 reports which seemed to indicate that the view taken by the 

 Maine courts would be the view taken here ; but our pres- 

 ent court of last resort in Massachusetts has several times 

 recently stated that the motive with which a man exercises 

 his property rights is immaterial ; so that it may be deemed 

 probable that, if the question were now to arise squarely in 

 Massachusetts, the court would adopt the rule in New York, 

 that, even though the well were dug maliciously, and not for 

 any useful purpose, the right of the party to dig the well 

 would be maintained. The owner of land in the lower 

 part of a stream can of course maintain an action against 

 an abutter on the stream above for polluting the stream in 

 any way ; by such means, for instance, as making a cess- 

 pool in the land near a stream, the contents of which may 

 leach into the stream, or by depositing manure near the 

 stream, and thus contaminating it. 



A man has no right to build his house or his barn so near 



