Daly, F. J.
The water deposited on the defendant’s lot, and which sank in close to the foundation of the west gable wall of the plaintiff’s house, as well as the water which flowed over the defendant’s lot towards the lot of the plaintiff, and into and upon the plaintiff’s premises, injuring his building, and rendering the basement of his house untenantable, was chiefly owing to the natural formation of the ground, and the cutting off of existing water-courses, and in part to the erection of sheds upon the lots both of the plaintiff, and of the defendant.
The plaintiff’s lot, before any building was the lowest lot in the neighborhood, northerly side of west Forty-third street, was erected upon i li is situated on ti between the Tern [138]*138and the Eleventh avenues, and the lot of the defendant, which adjoins it on the west, inclines or slopes toward it. To the north and west of the defendant’s lot, the laud is more elevated. This elevation extending as far as the Eleventh avenue and Forty-ninth street, with an easterly inclination or descent in the direction of the plaintiff’s lot. Upon this higher ground in the vicinity of Forty-ninth street, there are natural springs, the water from which flows over the surface in an easterly direction, across the defendant’s lot, and towards the lot of the plaintiff. In the fall and spring, these streams were more swollen than at other periods, discharging their waters over the surface, and the volume of water, which was largely increased when it rained, following the natural declivity of the.ground, flowed in the direction of the plaintiff’s lot. His lot being the lowest, water continually remained there, and before it was built • upon, a pond existed in the front part of it, large enough, in the language of one of the witnesses, for ducks to swim in. After his building was erected, a drain was laid across the centre of his lot, uniting with similar drains upon the lots to the east of him, which connected with a sewer one hundred and seventyflve feet east of the defendant’s lot. Fifty feet west of the plaintiff's lot there was also a culvert, upon the lot of one McKenna, which served to carry off the water flowing in a direction from plaintiff’s lot. As persons commenced building in the immediate vicinity, they filled up or stopped the drain referred to, and the water therefore flowed, over the surface, and "when McKenna built, he set his house in the middle of the culvert, and thus shutting off this escape, the water flowed over the lots of the defendant and of the plaintiff. It does not appear from the evidence, that the defendant did anything to alter the natural situation of his lot, until a short time before the commencement of the suit, and what he then did had a beneficial effect, as it tended to diminish the volume of water which flowed across his lot ih the direction of the plaintiff’s premises. The body of water which from the natural formations ran towards the plaintiff’s lot, was, especially during heavy rains, very great, descending with a force and quanthy, sufficient, according to the statement of the witnesses, to turn two or throe grist mills. • There was a hollow in the defendant’s lot directly adjoining the plaintiff’s house, and over it or close [139]*139it, there was a pile of boards covered with a shed thirteen feet wide and forty feet long, the roof of which pitched toward the plaintiff’s house, with á descent of seven inches, from which, when it rained, the water ran in the direction of the plaintiff’s building, and remained there, the place being nearly always wet, even in dry weather. The plaintiff, on. his part, had erected a wood-shed along the line of his own and the defendant’s lot, the roof of which pitched towards the lot of the defendant. The roof of these sheds was four or five feet in width and about forty feet long, and the water which fell upon it when rained -was precipitated upon the defendant’s lot, increasing the volume of water there deposited. The water, when it came in large quantities, completely submerged the plaintiff’s basement, and the body of water saturating the ground alongside of the foundation of his building wore its way through the interstices of his foundation wall, washing away the mortar from between the stones, and making, in the language of a witness, a corn crib of the west end gable. In 1856, the Corporation commenced the construction of a sewer in Forty-third street, which was completed in August, 1857. In December, 1856, the plaintiff was allowed to connect with the sewer*, as yet unfinished, but this did not afford complete relief, as the surface water still continued to flow towards his west gable wall, and plaintiff’s basement still continued wet and unfit for habitation at the commencement of this suit in July, 1857. From July, 1855, until he connected with the sewer in Forty-third street in December, 1856, the "plaintiff was compelled after every storm to have the water pumped out of his basement, which on such occasions rose two feet over the basement floor. The pumping took place two or three days in a week, and for two years the basement was never entirely free from water. Even after a suit was commenced, if a brick were taken up from the hearth, the water would rise and in half an hour be of the depth of six inches upon the basement floor.
The plaintiff purchased his house and lot in 1855, and from his own statement, was .aware of its disadvantageous position in respect to the flow of water. In the summer or fall of that year, he asked the defendant if he would'fill up his lot, or do something to prevent the water coming upon the plaintiff’s premises; but ike defendant refused, saying that he should, do [140]*140as he pleased with his own land. In the summer of 1856, the plaintiff asked him if he would sell his lot so that it might be drained, but he answered that it was not for sale. In July," 1857, the plaintiff asked him why he did not connect- with the sewer, and his answer was, that it would cost money, that if he wanted a connection for himself, he would put it in. He was then shown the inj ury done by the water to the plaintiff’s building, the cracks in the window-sills, the destruction of the walls, by the mortar coming out and dropping off, but he made no remark, and in a few days after, the plaintiff commenced this suit.
I have stated these facts, as they are essential to the full understanding of the question that we are required to pass upon. In view of the changes that had taken place in the neighborhood, it was certainly the duty of the -defendant to do something to carry off the water which, in consequence of the cutting off of the previous water-course by the erection of buildings and otherwise, gathered upon Ms lot, sapping the foundation of his neighbor’s building, and rendering the lower part of it uninhabitable. It does not appear- upon the testimony whether the drain under the plaintiff’s house, connecting with the sewer east of the defendant’s lot and the culvert on the lot of MeKenna, was or was not sufficient to carry off the water which from the natural formation of the ground flowed towards the plaintiff’s lot, hut it did appear from the defendant’s own testimony, that when these water-courses were cut off by the buildings and improvements in the vicinity, the effect of it was to cause a large body of water to collect upon the defendant’s lot. It collected chiefly in the hollow upon the lot previously referred to, immediately adjoining the west gable wall of the plaintiff’s building.
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Daly, F. J.
The water deposited on the defendant’s lot, and which sank in close to the foundation of the west gable wall of the plaintiff’s house, as well as the water which flowed over the defendant’s lot towards the lot of the plaintiff, and into and upon the plaintiff’s premises, injuring his building, and rendering the basement of his house untenantable, was chiefly owing to the natural formation of the ground, and the cutting off of existing water-courses, and in part to the erection of sheds upon the lots both of the plaintiff, and of the defendant.
The plaintiff’s lot, before any building was the lowest lot in the neighborhood, northerly side of west Forty-third street, was erected upon i li is situated on ti between the Tern [138]*138and the Eleventh avenues, and the lot of the defendant, which adjoins it on the west, inclines or slopes toward it. To the north and west of the defendant’s lot, the laud is more elevated. This elevation extending as far as the Eleventh avenue and Forty-ninth street, with an easterly inclination or descent in the direction of the plaintiff’s lot. Upon this higher ground in the vicinity of Forty-ninth street, there are natural springs, the water from which flows over the surface in an easterly direction, across the defendant’s lot, and towards the lot of the plaintiff. In the fall and spring, these streams were more swollen than at other periods, discharging their waters over the surface, and the volume of water, which was largely increased when it rained, following the natural declivity of the.ground, flowed in the direction of the plaintiff’s lot. His lot being the lowest, water continually remained there, and before it was built • upon, a pond existed in the front part of it, large enough, in the language of one of the witnesses, for ducks to swim in. After his building was erected, a drain was laid across the centre of his lot, uniting with similar drains upon the lots to the east of him, which connected with a sewer one hundred and seventyflve feet east of the defendant’s lot. Fifty feet west of the plaintiff's lot there was also a culvert, upon the lot of one McKenna, which served to carry off the water flowing in a direction from plaintiff’s lot. As persons commenced building in the immediate vicinity, they filled up or stopped the drain referred to, and the water therefore flowed, over the surface, and "when McKenna built, he set his house in the middle of the culvert, and thus shutting off this escape, the water flowed over the lots of the defendant and of the plaintiff. It does not appear from the evidence, that the defendant did anything to alter the natural situation of his lot, until a short time before the commencement of the suit, and what he then did had a beneficial effect, as it tended to diminish the volume of water which flowed across his lot ih the direction of the plaintiff’s premises. The body of water which from the natural formations ran towards the plaintiff’s lot, was, especially during heavy rains, very great, descending with a force and quanthy, sufficient, according to the statement of the witnesses, to turn two or throe grist mills. • There was a hollow in the defendant’s lot directly adjoining the plaintiff’s house, and over it or close [139]*139it, there was a pile of boards covered with a shed thirteen feet wide and forty feet long, the roof of which pitched toward the plaintiff’s house, with á descent of seven inches, from which, when it rained, the water ran in the direction of the plaintiff’s building, and remained there, the place being nearly always wet, even in dry weather. The plaintiff, on. his part, had erected a wood-shed along the line of his own and the defendant’s lot, the roof of which pitched towards the lot of the defendant. The roof of these sheds was four or five feet in width and about forty feet long, and the water which fell upon it when rained -was precipitated upon the defendant’s lot, increasing the volume of water there deposited. The water, when it came in large quantities, completely submerged the plaintiff’s basement, and the body of water saturating the ground alongside of the foundation of his building wore its way through the interstices of his foundation wall, washing away the mortar from between the stones, and making, in the language of a witness, a corn crib of the west end gable. In 1856, the Corporation commenced the construction of a sewer in Forty-third street, which was completed in August, 1857. In December, 1856, the plaintiff was allowed to connect with the sewer*, as yet unfinished, but this did not afford complete relief, as the surface water still continued to flow towards his west gable wall, and plaintiff’s basement still continued wet and unfit for habitation at the commencement of this suit in July, 1857. From July, 1855, until he connected with the sewer in Forty-third street in December, 1856, the "plaintiff was compelled after every storm to have the water pumped out of his basement, which on such occasions rose two feet over the basement floor. The pumping took place two or three days in a week, and for two years the basement was never entirely free from water. Even after a suit was commenced, if a brick were taken up from the hearth, the water would rise and in half an hour be of the depth of six inches upon the basement floor.
The plaintiff purchased his house and lot in 1855, and from his own statement, was .aware of its disadvantageous position in respect to the flow of water. In the summer or fall of that year, he asked the defendant if he would'fill up his lot, or do something to prevent the water coming upon the plaintiff’s premises; but ike defendant refused, saying that he should, do [140]*140as he pleased with his own land. In the summer of 1856, the plaintiff asked him if he would sell his lot so that it might be drained, but he answered that it was not for sale. In July," 1857, the plaintiff asked him why he did not connect- with the sewer, and his answer was, that it would cost money, that if he wanted a connection for himself, he would put it in. He was then shown the inj ury done by the water to the plaintiff’s building, the cracks in the window-sills, the destruction of the walls, by the mortar coming out and dropping off, but he made no remark, and in a few days after, the plaintiff commenced this suit.
I have stated these facts, as they are essential to the full understanding of the question that we are required to pass upon. In view of the changes that had taken place in the neighborhood, it was certainly the duty of the -defendant to do something to carry off the water which, in consequence of the cutting off of the previous water-course by the erection of buildings and otherwise, gathered upon Ms lot, sapping the foundation of his neighbor’s building, and rendering the lower part of it uninhabitable. It does not appear- upon the testimony whether the drain under the plaintiff’s house, connecting with the sewer east of the defendant’s lot and the culvert on the lot of MeKenna, was or was not sufficient to carry off the water which from the natural formation of the ground flowed towards the plaintiff’s lot, hut it did appear from the defendant’s own testimony, that when these water-courses were cut off by the buildings and improvements in the vicinity, the effect of it was to cause a large body of water to collect upon the defendant’s lot. It collected chiefly in the hollow upon the lot previously referred to, immediately adjoining the west gable wall of the plaintiff’s building. It was shown that by banking up earth upon the side of the lot he could have changed the direction of this water, or have carried it off by connecting with the sewer in 43d street, after the erection of that sewer had been commenced; and it cannot be that a party is justified in allowing water thus to collect upon his lot to the seriou-s detriment and damage of his. neighbor, when it -is in his power, by & moderate expenditure, to turn it off. He was urgently requested to do something, even to sell Ms lot to the plaintiff, but persistently refused to do anything until he thought pro[141]*141per to fill up his lot for his own convenience. If the land in the vicinity remained in its original .state, the proprietor of the plaintiff’s lot would have to bear the consequences of putting up a building upon ground so disadvantageous!}" situated. Neither the defendant nor any other proprietor of adjoining lots could he held answerable for the effects produced by water flowing over their ground towards the plaintiff’s lot in consequence of the natural formation of the soil. A party building upon a lot so low should furnish means for efficiently draining it, or if that were impossible, he would have to bear the result of his want of foresight in building upon land in such a condition. But, for all that appeared in the case, the means resorted to when the plaintiff’s building was erected, may have- been amply sufficient to carry off the water. But whether this was so or not, it is clearly shown by the testimony, that the body of water upon the defendant's lot was greatly increased after the cutting off of the drain and culvert referred to, and in my opinion, the change produced by the lawful exercise of the right which the proprietors of the other lots had to put up buildings upon their lots, imposed upon the defendant obligations in respect to his own lot which, but for those causes, would not have existed. His rights are to he taken in connection with the rights of all the a.djoining proprietors, and viewing them collectively, an obligation may arise which is the necessary consequence of the levelling and filling in of lots, the erection of buildings, and of the grading and pitch of streets in a new part of the city. The owner of a lot, when changes and improvements are taking place everywhere around him, has no right to insist that his lot shall remain a standing cess-pool for water to collect in, to the serious inj ury of those who -have erected buildings upon the lots which adjoin him, when it is in his power to adopt the same means which they hare used to connect with existing drains. I think the charge of the judge, therefore, upon, the point, was correct,, and that the exception to it was not well taken.
. The instruction contained in the third and fourth propositions submitted by the judge to the jury was .justified by the evideace. The defendant was certain1" responsible, if die water from the ruof of his stable or lumber shed was precipitated close to the plaintiff’s wall, and tended to undermine the form[142]*142dation of the plaintiff’s building. Mo man is justified in so using his own land as to injure the building upon the land of his neighbor, when he can avoid it by the exercise of reasonable and ordinary care.
It is assumed on the part of the defendant that this is a case of mutual or co-operating negligence, as water flowed from the plaintiff’s wood shed upon the defendant’s lot, close to the line of the plaintiff’s lot, and as the plaintiff thus contributed by his own act to swell the body of water resting there, and which caused the injury, that he has no right of action against the defendant; and to the refusal of the judge so to instruct the jury, and to the instruction which he did give upon the point, the defendant excepted. The plaintiff was certainly guilty of negligence in so pitching the roof of his wood shed as to-cast the water from it upon the defendant’s lot, thus augmenting the body of water which collected there; but it did not appear from the evidence that the plaintiff’s wood shed existed there prior to the year 1856. All that appears in the case is that the defendant saw them there during that year, ■'"id the injury to the plaintiff’s premises from water from the defendant’s lot is to be traced back to July, 1855. The plaintiff testified that after every storm from July, 1855, to December, 1856, when he connected with the unfinished sewer in Forty-third street, the water ran into his basement, and that he had to pump it out. The judge therefore had no right to assume that the plaintiff's wood sheds were there during the six months preceding the year 1856, and if any presumption is to be derived from the evidence, it is that they were not. For the injury suffered during the period, and to which he in no way contributed, the plaintiff clearly bad a right of action, and of which he would have been deprived if the Judge had charged as requested.
Mor does the fact that the pitch of the roof of the plaintiff’s wood sheds tended to augment the body of water which did the injury, necessarily deprive him of all right of action for the injury he sustained after the wood sheds were erected. The mutual or other co-operating negligence which deprives one party of any right of action-against the other, is where the act which produced the injury would not have occurred but for tile combined negligence of both. There maybe mutual negli[143]*143gence and yet one party have a right of action against the other. If a man negligently lie down and fall asleep in the middle of the public road, and another, failing to exercise ordinary care, should drive over him, the party injured would have a right of action against the other. Kerrohaker v. The Cleveland Columbus and Cincinnati R. R. Co. 3 Ohio R. 172, N. S; Trow v. Vermont Central R. R. Co. 24 Term. 494; Davie v. Mann, 10 Mees & Welsby, 545 ; Butterfield v. Forrester) 10 East, 60. For though the party lying upon the road was guilty of negligence in going to sleep in such a place, still it was not his act that caused the injury, but the want in the other party of .ordinary care, by the exercise of which he could have driven around and avoided the obstacle. On the •other hand, if a vehicle is driven at an improper rate of speed through a street, and a passenger who sees it approaching improperly attempts to cross, in the expectation that he will he able to pass before it can reach the spot where he crosses, and he-is injured by coming in contact with it, that is a case in which the united negligence of both co-operated and produced the accident which otherwise would not have occurred. "Where such is the case, both parties are the joint authors of the act which caused the injury, and the degree or proportion in which each may have contributed to produce it is immaterial, as one is not entitled to have satisfaction from the other for an act which had its origin in their mutual negligence. But if the effect of the negligence of one party was to produce injury to a, certain extent :in any event; that is, if its effect was to produce a certain amount of injury, even if the other party had been guilty of no negligence at all, then, though the negligence of the other party may have rendered the loss or injury greater than it would otherwise have been, still they are not the joint authors of all that has taken place, and it is possible to distinguish tile amount of injury caused by' the negligence of the one, from the amount of injury caused by the negligence of the other. In .the. case which I have put, where collision, is produced by the imprudent act of the pas-’-enger and the neglect of the driver, the whole damage is die result of their mutual agency, and no part of it can he said to be the result of the act of the one any more than of the act of the other. There may be more fault upon one side than upon the [144]*144other, hut the degree of fault is not distinguishable in the damage done, and therefore, there can he no apportionment, and consequently no recovery. But if a certain amount of damage was caused by the act of the defendant, and an ascertainable amount by the act of the plaintiff, it does not follow because the plaintiff by his act increased the amount of his damage, that he is to have no remedy against the defendont for the damage which was caused by the acts of the dofendant alone ; and that is exactly the present case.
It is manifest from the testimony that the chief injury to the plaintiff’s premisos was produced by the water which flowed in such large quantities over the defendant’s lot, and lodged upon it, close to the plaintiff’s building. It was, as has been shown, mainly owing to the existence of springs in the elevated-ground above, and to the cutting off of the existing water courses. The water precipitated from the defendant’s lumber shed and from the plaintiff’s wood sheds when it rained, undoubtedly increased the whole body of water that collected in such close proximity to the plaintiff’s building; but the contribution from these sources must have been slight as compared with the water that continued constantly to collect there from the other causes. It was possible, therefore, for the jury to form some judgment as to the extent to which the plaintiff had been damaged by the acts of the defendant alone, and I think that in such a case they had a right to discriminate, and hold the defendant responsible for damages arising from causes with which the plaintiff had no agency. I think the instruction given by the judge, therefore, upon this point, was correct.
But though the judge instructed the jury that if the plaintiff’s house liad been injured, and irrespective of the contribution of water from his own wood shed, lie would be entitled to recover for injury done by other waters proceeding from the defendant’s premises, he excluded upon the trial, undor the defendant’s exception, a question asked with the view of showing the amount of water which came from the defendant’s woodsheds m proportion to the whole, which was certainly erroneous. Unless the jury had some information as. to the proportion ot water that came from the plaintiff’s wood-sheds, they could not discriminate, and the shutting off of all inquiry upon rms [145]*145point must have operated to the defendant’s prejudice. For this error, which is the only one I find in the case, a new trial must he granted.
Beady, J.
The question asked the witness Auld, viz: ■What relative amount of water to the whole in Hr. Thomas’s yard comes from the defendant’s lot? should not have been allowed. The witness had stated that he had seen water falling from the wood-shed of the plaintiff on the defendant’s land, having been in the defendant’s lot when it rained, and there was ho pretence that he knew of water running or falling upon the defendant’s lot, except that which fell from the shed. He did not state that he knew how many rain-storms had taken place daring the period it was alleged, and proved, that the defendant had permitted the water to accumulate on his lot, or that he knew of the 'violence of such storms. He had seen water falling from the plaintiff’s wood-shed often, and nothing more. If he had been asked as to the extent of the water which he saw thus falling, the question would have been proper ; but it was much broader, being general, and unlimited as to time. He was to state the relative quantity of water to the whole in the defendant’s yard which came from the.plaintiff’s lot, and he was not shown to possess the necessary knowledge or information on that subject to enable him to express an opinion. The dimensions of the shed had been given, and the plaintiff had admitted that the rain-water ran from his shed upon the defendant’s lot, but the quantity was not stated. The dimensions of the shed being known, and. the number and character of the rain-storms as to violence- being shown, the jury would have had the data by which such quantity could be determined, or the witness being competent thereto, might make’ and state an estimate. The question which was put to Auld was scientific in its whole breadth and scope, and could not have been answered without some knowledge of laws with, which he was not shown to be familiar. The sanee reasoning applies to the next question asked of Auld. I dink the judgment should not be reversed, therefore, for the t-xvh;sion ot" these questions; and there being in the case evidono thafc some water had fallen from the plaintiff’s shed upon, the defendant’s the duty [146]*146the ninth proposition, and upon such proposition it was immaterial what, quantity of water was contributed from the plaintiff’a shed. The jury we, „ therein told that if they believed that the water which ran from the plaintiff’s shed went to swell the water which came from the defendant’s lot into the basement of the plaintiff’s house, then the plaintiff' could not recover, his own negligence contributing to the injury of which he complained. The defendant’s neglects in this respect were not dependent upon the quantity of water which came from the plaintiff’s shed. His liability was based upon the question whether the plaintiff’s house would have been injured by the other water, in consequence of the defendant’s gross negligence in not trying to prevent the injury. If the defendant wished to prove the contributions of water from the plaintiff’s lot, he should have adopted the proper means of establishing the fact, which he did not do, and he had the advantage of all the proof on that subject in the case. The evidence warranted the finding of gross negligence, and it was upon that theory that the verdict was given. His attention had been called to the injury the plaintiff was sustaining, and he refused to do anything to obviate it, expressing a determination to do as he pleased with his own land.
The judgment should be affirmed. -