Page:North Dakota Reports (vol. 48).pdf/185

 furthermore, the development and growth of towns and cities in proximity to lands, either rural or urban, create artificial conditions imposing additional burdens on lower lands in addition to surface waters, the justice of the rule granting an absolute property right in the land of a servient tenement is, in fact, made negative.

The purpose of our statute requiring publicity of title, of easements, and incumbrances thereon do not voice themselves favorably to a rule of property that grants to one paramount landowner a property right in the land of another which is covert and unknown in its extent and character. In this state the fundamental conceptions of the common-law jurisprudence obtain except as constitutional, statutory, or local laws express to the contrary. The rejection of the easement theory which permits a landowner to make fruitful and productive, for purposes of his ownership, land that he would be compelled otherwise to maintain as a servitude for purposes of a drainway, subject only to the principle of law that he must not be negligent in so doing so as to thereby occasion damage to an upper riparian owner, fully performs the office of protecting both lower and upper land proprietors. Such noneasement theory is consonant with common-law principles. In other words, the measure of a landowner’s right and reciprocating duty in the removal or disposition of surface waters is to be guided by the principle of law that he has the right to possess, use, and enjoy his land subject to the principle, “sic utere tuo ut alienum non ledas”; that in the application of this principle it may be an act of negligence for the lower landowner to obstruct a natural drainway through artificial obstructions so as to dam up or inhibit the natural passage of surface waters that theretofore flowed, and which he might have reasonably anticipated would continue to flow. What constitutes acts of negligence in the violation of this principle, “sic utere tuo,” has been considered in many cases, and requires no present discussion. Upon this principle of law, the decisions in Soules v. N. P. and Reichert v. N. P. can be upheld and sustained as acts of negligence upon the facts in the record of each respective case. Accordingly, in the case at bar, the gist of defendant’s liability is its negligent acts, if any, imposing artificial conditions upon conditions of nature theretofore existing in its own land, whereby negligently it occasioned damages to adjacent landowners through the impounding of surface waters.

The gist of plaintiff’s right to recover in this action is dependent upon the negligent action of the defendant in constructing and maintaining