Chadeayne v. Robinson. fence constituted the substantial obstruction to its flow, although the plaintiffs' fence in some degree assisted in stopping the flow. But except for the erection of said fence by the defendants the damages to the plaintiffs would not have occurred." It is evident that had not the defendants interfered with the opening the water could not have ponded and the injury would not have taken place. We submit that this construction of the fence beyond the point of division was not a lawful use of their own land by the defendants so as to bring the case within the decision in Grant v. Allen, but it was an unlawful use of the land of the plaintiffs. The cases cited by the court in that case show that all the acts by which the water was obstructed were done in the lawful use of the land by the defendants. In Dickinson v. City of Worcester, 7 Allen, 19, the defendant permitted a culvert under the street to become filled up, and the flow of water was thereby obstructed, and the court held, (p. 22,) "that no action can be maintained for changing the course or obstructing the flow of mere surface water by erections on adjoining land." And in Gannon v. Hargadon, 10 Allen, 106, the defendant placed turfs in ruts upon his own land and "thereby caused the water to flow off upon the plaintiffs' land," and the court held that "the obstruction of surface water or an alteration in the flow of it affords no cause of action in behalf of a person who does not act inconsistent with the due exercise of dominion over his own soil." W. C. Case and W. H. Ely, for the appellees, citedGrant v. Allen, 41 Conn., 160; Luther v. Winnisimmet Co., 9 Cush., 174; Dickinson v. City of Worcester, 7 Allen, 22; Gannon v. Hargadon, 10 id., 109; Flagg v. City of Worces ter, 13 Gray, 601; Murphey v. Kelley, 68 Maine, 521; Swett v. Cutts, 50 N. Hamp., 439; Chatfield v. Wilson, 28 Verm., 49; Bowlsby v. Speer, 31 N. Jer. Law, 351; Goodale v. Tuttle, 29 N. York, 467; Barkley v. Wilcox, 86 id., 140, 148; Eulrich v. Richter, 37 Wis., 226; Lessard v. Chadeayn e v. Robinson. Stram, 62 id., 112; Kansas City &c. R. R. Co. v. Riley, 33 Kansas, 374; Benthall v. Seifert, 77 Ind., 302. PARDEE, J. This is a complaint for obstructing the pas sage of surface water flowing upon the defendants' land, whereby it was set back upon the land of the plaintiffs. Judgment was rendered for the defendants, and the plaintiffs have appealed. The following are the reasons of appeal assigned: 1. That the court erred in ruling as a matter of law, upon the facts found, that there was damnum absque injuriâ aud that therefore the plaintiffs were not entitled to recover damages. 2. The court having found that the course of the surface water, coming from the lands south of the plaintiffs' and flowing across their land, was thence upon the defendants' land, and that the defendants constructed their fence two or three feet beyond the point of division and upon the plaintiffs' line, and that the agreed place of dividing said divisional fence was at or very near the place where the greater quantity of water was accustomed to flow from the plaintiffs' to the defendants' land and the defendants' divisional fence. constituted the substantial obstruction to its flow, and that except for the erection of said fence by the defendants the damage to the plaintiffs would not have occurred, and that material damage was done to and in the house of the plaintiffs by said divisional fence stopping the water, erred in ruling that, as a matter of law, the plaintiffs were not entitled to damages. The parties are severally owners of adjoining village lots with a house upon each. Except for the intervention of man surface water would run from the plaintiffs' lot upon that of the defendants. They made an agreement as to the portion of division fence to be built and maintained by each. The defendants built a tight board fence two or three feet. longer than the agreement required from them for the purpose of closing an opening left by the plaintiffs. The Chadeayne v. Robinson. agreed place of division of the fence was at or near the place where the greatest part of the surface water flowed, and the defendants' fence prevented the usual flow and ponded the water on the plaintiffs' land to their material damage. The general common law rule in reference to surface water is that stated in Gould on Waters, § 267, as follows:"The right of an owner of land to occupy and improve it in such manner and for such purposes as he may see fit, either by changing the surface, or the erection of buildings or other structures thercon, is not restricted or modified by the fact that his own land is so situated with reference to that of adjoining owners, that an alteration in the mode of its improvement or occupation in any portion of it will cause water, which may accumulate thereon by rains and snows falling on its surface, or flowing on to it over the surface of adjacent lots, either to stand in unusual quantities on other adjacent lands, or pass into and over the same in greater quantities or in other directions than they were accustomed to flow." This rule was accepted as the law by this court in Grant v. Allen, 41 Conn., 156; the court there saying that "the right of the owner of land to determine the manner in which he will use it, or the mode in which he will enjoy it, the same being lawful, is too high in character to be affected by considerations growing out of the retention, diversion or repulsion of mere surface water, the result of falling rain or melting snow." Under that rule it is the right of the defendants to erect for the entire depth of their lot a structure which will be a perfect barrier to surface water. Of course that which they may do perfectly and permanently, they may do imperfectly and temporarily; and the plaintiffs must accept the consequences. And this rule is neither suspended nor modified in the present case by the agreement as to the portion of fence to be constructed by each. That agreement was not intended, and is not by either party to be interpreted, as a permanent Davis v. Town of Guilford. quit-claim by the other of the right to improve his property to the fullest extent. There is no error in the judgment complained of. In this opinion the other judges concurred. SHERMAN W. DAVIS VS. THE TOWN Of Guilford. New Haven Co., June T., 1887. PARK, C. J., CARPENTER, PARDEE, The law disregards variances which, although they may magnify an injury and misstate attendant circumstances, neither raise any doubt in the mind of the defendant as to the charge which he is to meet, nor lead him to omit any matter of preparation for his defence. A party having a good cause of action has a right to sue or refrain from suing at his pleasure, and an inquiry from the defendant, whether, in a certain event, he would not have refrained from suing is impertinent and inadmissible. The law allows a town a reasonable time for knowledge of defects in a highway and a further reasonable time for making the necessary repairs; yet it requires of the town a reasonable supervision of highways, and a want of knowledge of a defect by its selectmen does not constitute a legal excuse for inaction if ignorance is the result of negligence in supervision. If a defect is plain to the eye and has existed for a considerable time, the court would be justified in imputing to the town either negligent and therefore culpable ignorance in reference to it or culpable delay in repairing after actual knowledge. Held that such knowledge and negligence might be imputed where a defect in a road little used had existed for two months. A town owes more of care to a road used much than to one used little; but its duty is to keep it in each case in a condition of reasonable safety. The plaintiff was driving a pair of horses over a rough road, with a large load of hay and loose straw, on the top of which he was sitting, when by reason of a gully in the road, washed out by the rains, he was thrown to the ground and injured. The court below found that the load was properly placed and that the accident was caused by the condition of the road. Held that this court could not, upon the facts found, determine that the plaintiff could not safely have driven in that way over the road and that he brought the injury upon himself. [Argued June 21st-decided October 21st, 1887.] Davis v. Town of Guilford. ACTION for an injury from a defect in a highway; brought to the Court of Common Pleas in New Haven County, and tried to the court before Deming, J. Facts found and judg ment rendered for the plaintiff, and appeal by the defendant. The case is fully stated in the opinion. H. G. Newton and C. K. Bush, with whom was C. Kleinerfor the appellant. H. L. Hotchkiss, for the appellee. PARDEE, J. This is a complaint for injuries occasioned by a defect in a highway. The case was tried to the court and judgment rendered for the plaintiff. The defendant has appealed for the following reasons: That the court erred in holding the plaintiff entitled to recover on the facts found; in imposing upon the defendant a duty greater than that required by law; in holding that on the facts found there was a defect in the highway for which the defendant was liable; in holding that the plaintiff's injury was caused by a defect in the highway for which the defendant was liable; in holding that the complaint was suf ficiently proved and supported by the facts found to entitle the plaintiff to judgment; in holding that the plaintiff was not guilty of such negligence as would defeat his right to recover; in admitting the evidence as to the condition of the road being the subject of conversation among neighbors; in excluding each of the defendant's cross-questions to the plaintiff; and in admitting the testimony as to the gentleness of the plaintiff's horses. The plaintiff was injured while descending a steep hill. The defendant had constructed two ridges or waterbreaks diagonally across the way near the top of the hill, for the purpose of turning water into gutters. Such breaks properly made and repaired are found to have been necessary at the place in question because rocks prevent the making of gutters above. The finding also is that "during June and July, 1886, the water had washed over the top of the hill |