D'aBFFE,
C. J.
The city of Providence is a municipal corporation capable of suing and being sued like any other corporation. The question is, whether, being such a corporation, it is liable to be sued for the injury to prove which the testimony is offered. There can be no doubt that an action would lie against a private corporation or individual for a similar
injury;
for the right to fight surface water certainly does not go so far as to justify a man’s draining the puddles of his own land into the well and cellar of his neighbor. Why, then, will not the action lie against the city. The answer given is, that the water was not discharged upon the plaintiff’s premises from land belonging to the city, but from a public street, and was so discharged in con
sequence of a change of grade or surface in that and other streets made by the city under the authority of the statutes of the state. And it is argued that a public corporation, acting for the public within the limits of its authority, is not liable, unless made liable by statute, for the damages resulting to individuals from its acts.
It is perfectly well settled that a town or city is not liable, unless made so by statute, for damages resulting to an abutting owner from a mere change in the grade or surface of a highway made by such town or city, if the change does not extend beyond the limits of the highway. Such a change may occasion great inconvenience, and oblige the owner to incur great expense to adjust his houses or lands to the new grade or level; but, nevertheless, he must bear the inconvenience and expense, if they come, without compensation ; for no right of his is invaded so long as the change does not create a nuisance, and is confined strictly within the limits of the highway. The loss which he suffers from such a change is
damnum absque injuria.
2 Dillon on Municipal Corporations, § 783. Many of the cases cited for the defendant are cases in which this doctrine is sustained. In the case at bar the defendant asks us to go further ; for, in the case at bar, the plaintiff complains not of what has been done
in
the streets, but of what has happened upon his own land, in consequence of what has been done in the streets. See
St. Peter
v. Denison, 58 N. Y. 416, 423. His property has been invaded, and the question is, whether he is entitled to any remedy against the city for the invasion. There are cases which hold, or seem to hold, that no action lies against a city even for such an injury.
Wilson
v. Mayor, &c.
of New
York, 1 Den. 595 ;
Clark
v.
City of Wilming
ton., 5 Harring. Del. 243. The ground of these decisions is, that a city cannot be answerable at law for the consequences of an act which it is legally authorized or required to perform. But we think this doctrine, the abstract truth of which cannot well be gainsaid, is misapplied when it is held to sanction an invasion of private property, even though the invasion is only consequential. Let us consider the doctrine as it applies to the case at bar. The city of Providence is required to keep its streets in proper repair, and is authorized, in the discharge of this duty, to grade them and to alter their grades. Whatever, therefore, is done by the
city in the discharge of this duty, or in the exercise of this authority, must be deemed to be rightfully done, so long as there is no encroachment upon private property. But does it follow from this that the city has the right to grade its streets so as to collect the water from a wide area, some of it from distant puddles or ponds, and bring it, charged with all the miscellaneous filth of the streets, to the margin of the plaintiff’s .land, and then empty it upon his land, and into his cellar and well ? The statute should not be unnecessarily construed to sanction any such result. And so long as it is in the power of the city to make drains and culverts, as well as to alter grades, it is not necessary to give the statute such a construction. Or, if it is necessary, then the statute is, so far, unconstitutional and void, and cannot protect the city from liability. Suppose the statute authorized the city in so many words to do what the plaintiff claims has been done, can there be any doubt that it would be unconstitutional, as authorizing the taking of private property for public use without just compensation ? Certainly, property is taken, to some extent, when its beneficial use is destroyed or impaired in this way, as well as when its owner is directly and formally excluded from its enjoyment.
Pumpelly
v.
Green Bay Co.
13 Wall. 166 ;
Eaton
v.
Boston, C. & M. R. R. Co.
51 N. H. 504. And if a statute could not in so many words authorize the grievances complained of, it could not any better authorize them by the employment of general and indefinite terms.
The view which we have taken has the support of respectable authority. Indeed, it is approved by the general current of recent decision. Thus in Illinois, in
Nevins
v.
City of Peoria,
41 Ill. 502, it was held that a city may elevate or depress its streets as it thinks proper; but if in so doing it turns a stream of mud and water upon the grounds and into the cellar of one of its citizens, or creates in his neighborhood a stagnant pond that brings disease upon his household, it should not be excused from paying for the injuries it has directly brought. A city, say the court, has no more power over the streets than a private individual has over his own land; and it cannot, under the specious plea of public convenience, be permitted to exercise that dominion to the injury of another’s property, in a mode that would render a private individual responsible in damages without being responsible
itself. This decision has been reaffirmed in several subsequent cases.
City of Aurora
v.
Gillett et al.
56 Ill. 132;
City of Aurora
v. Reed, 57 Ill. 29;
City of Jacksonville
v. Lambert, 62 Ill. 519.
So, in Wisconsin, the same point has been similarly decided.
Pettigrew
v.
Village of
Evansville, 25 Wis. 223. And the court held that, if a city wishes to acquire the right to turn a stream of water upon the property of an individual to his injury, it must do so by an exercise of the power of eminent domain, and by the payment of full compensation, as the Constitution requires.
The Supreme Court of Michigan, in a careful decision recently delivered by Cooley, C. J., affirms the same doctrine.
Ashley
v.
The City of Port
Huron, 15 Albany Law Journ. 81, for February 3, 1877. The court there decides that a municipal corporation is no more exempt from liability than an individual, when that which it does results in the invasion of private property; that if a city constructs a sewer so as to discharge its waters upon private property, it is responsible for the injury ; and that the flooding of private property is just as much an appropriation as would be the taking of an easement in it. And see
Clark
v.
Peckham,
9 R. I. 455.
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D'aBFFE,
C. J.
The city of Providence is a municipal corporation capable of suing and being sued like any other corporation. The question is, whether, being such a corporation, it is liable to be sued for the injury to prove which the testimony is offered. There can be no doubt that an action would lie against a private corporation or individual for a similar
injury;
for the right to fight surface water certainly does not go so far as to justify a man’s draining the puddles of his own land into the well and cellar of his neighbor. Why, then, will not the action lie against the city. The answer given is, that the water was not discharged upon the plaintiff’s premises from land belonging to the city, but from a public street, and was so discharged in con
sequence of a change of grade or surface in that and other streets made by the city under the authority of the statutes of the state. And it is argued that a public corporation, acting for the public within the limits of its authority, is not liable, unless made liable by statute, for the damages resulting to individuals from its acts.
It is perfectly well settled that a town or city is not liable, unless made so by statute, for damages resulting to an abutting owner from a mere change in the grade or surface of a highway made by such town or city, if the change does not extend beyond the limits of the highway. Such a change may occasion great inconvenience, and oblige the owner to incur great expense to adjust his houses or lands to the new grade or level; but, nevertheless, he must bear the inconvenience and expense, if they come, without compensation ; for no right of his is invaded so long as the change does not create a nuisance, and is confined strictly within the limits of the highway. The loss which he suffers from such a change is
damnum absque injuria.
2 Dillon on Municipal Corporations, § 783. Many of the cases cited for the defendant are cases in which this doctrine is sustained. In the case at bar the defendant asks us to go further ; for, in the case at bar, the plaintiff complains not of what has been done
in
the streets, but of what has happened upon his own land, in consequence of what has been done in the streets. See
St. Peter
v. Denison, 58 N. Y. 416, 423. His property has been invaded, and the question is, whether he is entitled to any remedy against the city for the invasion. There are cases which hold, or seem to hold, that no action lies against a city even for such an injury.
Wilson
v. Mayor, &c.
of New
York, 1 Den. 595 ;
Clark
v.
City of Wilming
ton., 5 Harring. Del. 243. The ground of these decisions is, that a city cannot be answerable at law for the consequences of an act which it is legally authorized or required to perform. But we think this doctrine, the abstract truth of which cannot well be gainsaid, is misapplied when it is held to sanction an invasion of private property, even though the invasion is only consequential. Let us consider the doctrine as it applies to the case at bar. The city of Providence is required to keep its streets in proper repair, and is authorized, in the discharge of this duty, to grade them and to alter their grades. Whatever, therefore, is done by the
city in the discharge of this duty, or in the exercise of this authority, must be deemed to be rightfully done, so long as there is no encroachment upon private property. But does it follow from this that the city has the right to grade its streets so as to collect the water from a wide area, some of it from distant puddles or ponds, and bring it, charged with all the miscellaneous filth of the streets, to the margin of the plaintiff’s .land, and then empty it upon his land, and into his cellar and well ? The statute should not be unnecessarily construed to sanction any such result. And so long as it is in the power of the city to make drains and culverts, as well as to alter grades, it is not necessary to give the statute such a construction. Or, if it is necessary, then the statute is, so far, unconstitutional and void, and cannot protect the city from liability. Suppose the statute authorized the city in so many words to do what the plaintiff claims has been done, can there be any doubt that it would be unconstitutional, as authorizing the taking of private property for public use without just compensation ? Certainly, property is taken, to some extent, when its beneficial use is destroyed or impaired in this way, as well as when its owner is directly and formally excluded from its enjoyment.
Pumpelly
v.
Green Bay Co.
13 Wall. 166 ;
Eaton
v.
Boston, C. & M. R. R. Co.
51 N. H. 504. And if a statute could not in so many words authorize the grievances complained of, it could not any better authorize them by the employment of general and indefinite terms.
The view which we have taken has the support of respectable authority. Indeed, it is approved by the general current of recent decision. Thus in Illinois, in
Nevins
v.
City of Peoria,
41 Ill. 502, it was held that a city may elevate or depress its streets as it thinks proper; but if in so doing it turns a stream of mud and water upon the grounds and into the cellar of one of its citizens, or creates in his neighborhood a stagnant pond that brings disease upon his household, it should not be excused from paying for the injuries it has directly brought. A city, say the court, has no more power over the streets than a private individual has over his own land; and it cannot, under the specious plea of public convenience, be permitted to exercise that dominion to the injury of another’s property, in a mode that would render a private individual responsible in damages without being responsible
itself. This decision has been reaffirmed in several subsequent cases.
City of Aurora
v.
Gillett et al.
56 Ill. 132;
City of Aurora
v. Reed, 57 Ill. 29;
City of Jacksonville
v. Lambert, 62 Ill. 519.
So, in Wisconsin, the same point has been similarly decided.
Pettigrew
v.
Village of
Evansville, 25 Wis. 223. And the court held that, if a city wishes to acquire the right to turn a stream of water upon the property of an individual to his injury, it must do so by an exercise of the power of eminent domain, and by the payment of full compensation, as the Constitution requires.
The Supreme Court of Michigan, in a careful decision recently delivered by Cooley, C. J., affirms the same doctrine.
Ashley
v.
The City of Port
Huron, 15 Albany Law Journ. 81, for February 3, 1877. The court there decides that a municipal corporation is no more exempt from liability than an individual, when that which it does results in the invasion of private property; that if a city constructs a sewer so as to discharge its waters upon private property, it is responsible for the injury ; and that the flooding of private property is just as much an appropriation as would be the taking of an easement in it. And see
Clark
v.
Peckham,
9 R. I. 455.
The counsel for the city contends that the city is not liable because the changing or refusing to change a grade, and the providing or refusing to provide sewers and culverts, is discretionary or judicial. We think, however, that this defence, though it might be good if the city were complained of for not doing such an act, or for doing it in an insufficient manner, is not a sufficient answer where private property is invaded and its beneficial use destroyed or seriously impaired without compensation.
Our statute, Gen. Stat. R. I. cap. 60, § 38, gives an abutting owner, who is injured by any change in the grade of a highway, a peculiar statutory remedy. The defendant contends that, such a remedy being given, it is the only remedy. Where a statute creates a new right or liability, and at the same time gives the remedy, it has been held that the remedy given is the only remedy. The liability here incurred was not created by the statute. It would have existed, and a right of action on it would have existed, if the statutory provisions referred to had never been
enacted. The remedy given, therefore, supposing it to be applicable, must be regarded in this respect as cumulative, not exclusive.
The defendant contends that the city is not liable for the acts complained of, or some of them, because they were done by the highway commissioners. We think, however, that the changes complained of,
primd facie
at least, must be regarded as the act of the city, which is answerable for the repair of the streets, and which, moreover, unlike towns in respect of surveyors, is
specially
authorized to prescribe the duties of the highway commissioners.- See City Charter, sec. IX. clause 4; Public Laws, cap. 965, Act of January 26, 1872. The city has prescribed their duties by ordinance, specifying certain duties, and requiring them to perform generally the duties of a surveyor of highways, with a proviso, however, that they shall be “ always subject to the orders of the city council.” City Ordinances, cap. 36, § 17. Their official acts, therefore, however it might be in the case of a surveyor of highways, must be presumed to be, in legal effect, the acts of the city. And see
Conrad
v.
Trustees of the Village of
Ithaca, 16 N. Y.
158; Eastman
v. Meredith, 36 N. H. 284, 293.
We think the testimony offered is admissible. The case, therefore, must stand under the agreement for an assessment of damages.