fective guttering drains and down spouts thereon, to flow upon, along, and across the sidewalk, and to freeze thereon, it was held that both the city and the property owned were liable, if, through the fault or carelessness of the property owner, the obstruction came into existence upon the sidewalk, and the city, after it knew, or by the exercise of ordinary care could have known, of the obstruction, carelessly failed to remove it, but that there could be no liability on the part of the abutting owner unless he had negligently permitted the water to flow upon the sidewalk. It further appeared that the premises were, and for a considerable time had been, in the possession of tenants, and the court held erroneous an instruction which would have allowed recovery against the owner, even though there was no defective construction, on a mere showing that the guttering or down spout was insufficient or defective at the time of the injury, whereas the owner should not have been held liable unless such defect existed at the time he leased the premises to the tenants who were in possession at the time of the injury. Upon a subsequent appeal in this case in (1923) Mo. App. -, 256 S. W. 1093, the contention of the property owner that an instruction in regard to its liability was erroneous in the omission of the element of negligence on its part in permitting the water to run across the sidewalk was overruled, upon the ground that the dangerous condition was the result of a fault of construction, and not of negligent defect allowed to arise in the pipe, preventing its carrying off the water.

The case of Reedy v. St. Louis Brewing Asso. (1901) 161 Mo. 523, 53 L.R.A. 805, 61 S. W. 859, is not strictly within the scope of this annotation, as the water which produced the ice, upon which the plaintiff in that case fell, came from the bursting of a pipe leading to a storage tank on the roof of the defendant's building, but the rule is laid down in that case that a joint liability against the owner of property abutting on the street and the municipality exists, where he

34 A.L.R.-27.

negligently suffers rain water to be discharged from defective pipes on his roof, so that it freezes and forms a dangerous condition of the sidewalk, which is permitted to remain for an unnecessary period, until a passerby falls and is injured.

In Springfield v. Clement (1920) 205 Mo. App. 114, 225 S. W. 120, where the city, after having paid a judgment obtained against it by one who fell on a rough and uneven formation of ice on the sidewalk, which was due to the negligence of the owner of the adjoining premises in permitting certain down spouts carrying water from the roof of his building to become leaky and out of repair, so that water was precipitated onto the sidewalk, sought to recover over against the heirs of such abutting owner, it was held that the injured person might have recovered against the abutting owner had she brought her action directly against him, and that the city might have recovered over against him had he been living at the time this action was brought, and that the city's right to indemnity survived the death of the abutting owner so that this action might be maintained against his heirs. The case was, however, certified to the supreme court for final determination, and it was there held, in (1922) 296 Mo. 150, 246 S. W. 175, that the cause of action against the abutting owner did not survive his death, and that since no judgment was obtained against him in his lifetime, and the action against the city was not commenced until after his death, the city could not maintain an action against his heirs or devisees for reimbursement. There is, however, no intimation of any disapproval of the statement of the intermediate court as to his liability, either directly to the injured person, or to the city, had he survived.

In Dow v. Interborough Rapid Transit Co. (1918) 185 App. Div. 10, 172 N. Y. Supp. 623, it was held that an elevated railroad company might be held liable for injuries received by a pedestrian from falling on an icy sidewalk, if it appeared that the ice was formed, or that an existing icy condi

tion was aggravated and made more dangerous, by water which escaped through holes in a leader running from the stairway from the railroad company's platform to the street, and that the defective condition of the leader, with the consequent escape of water and formation of ice, had existed during the period of at least a week prior to the accident.

IV. Exceptions to, and limitations upon, the general rule.

a. In general.

The rule followed by the New Jersey courts is somewhat more favorable to the abutting owner, and relieves him of liability, if the diversion or altered transmission of the water to the sidewalk is merely incidental to the beneficial user of his property.

Thus, in Jessup v. Bamford, Bros. Silk Mfg. Co. (1901) 66 N. J. L. 641, 58 L.R.A. 329, 88 Am. St. Rep. 502, 51 Atl. 147, the owner of a lot sloping toward the street, upon which he had erected a building the front of which rested upon a wall in which openings were left to permit the escape of surface water, one of such openings being equipped with a drain pipe the apparent purpose of which was to enable the surface water to flow more readily through the aperture, was held not to be liable to one who fell upon ice formed on the sidewalk from water which came through these openings, the decision being put on the ground that "the diversion or altered transmission of surface water, caused by the erection of a building upon land over which it is accustomed to flow, affords no ground of action to a person who suffers injury by reason thereof," the court calling attention to the fact that if the land had been left unimproved, the same water would naturally have flowed upon and over the sidewalk, and regarding the concentration which resulted from the construction of the retaining wall and the holes therein as a mere necessary incident of the legitimate beneficial user of its property by the defendant.

And a railroad company which, by filling in a tract of land upon which its freight shed was located, changed

its topography so as to cause a change in direction of the drainage of the surface therefrom, and erected a retaining wall next to the street with the result that water formed by the melting of snow accumulated on the premises, flowed over the wall, and formed ice on the sidewalk, was held in Lightcap v. Lehigh Valley R. Co. (1917) 90 N. J. L. 620, 101 Atl. 187, not to be liable to one who fell upon the icy sidewalk, in the absence of proof that snow had been transported upon the premises from other places, the court saying: "The mere fact that the defendant exercised over his land an indubitable right of ownership in changing the grade or slope to suit the defendant's convenience or necessities in the use thereof presents no ground of liability for an incidental injury to another, but it is clearly damnum absque injuria."

And in Cavanagh v. Hoboken Land & Improv. Co. (1919) 93 N. J. L. 163, 5 A.L.R. 933, 107 Atl. 414, it was held that one who, having constructed a leader or down pipe to conduct water from his roof to a sewer in a street, temporarily permits it to be out of repair so that the water flows over the sidewalk and freezes, making the way dangerous for pedestrians, is not liable to a pedestrian who falls upon the ice when attempting to use the walk with knowledge of the defective condition of the pipe, the court taking the view that if the defendant had not constructed a leader for the purpose of carrying off the water which had accumulated on the roof of his building, but had merely made an opening in the gutter for the purpose of permitting the water which had gathered therein to fall upon the street, there would have been no liability for the reason that the concentration of the flow of water and its altered transmission to the highway were a necessary incident to the legitimate beneficial user of its property by the defendant, and that, this being so, the fact that the defendant had undertaken to conduct the water to the sewer would not render him liable, where he either temporarily or permanently abandoned this purpose and such abandon

ment was known to the person injured.

The idea that the landowner has a right to change or improve his premises, and is not liable if a merely incidental result of his so doing is to cast water upon the sidewalk, is also brought out in the reported case (SHERMAN V. LA CROSSE, ante, 406), but it is evident that the court would not have gone to the extent of excusing the owner from liability had the construction there in question been one designed or intended to concentrate the water into a stream and pour it upon the sidewalk.

So, also, in Field v. Gowdy (1908) 199 Mass. 568, 19 L.R.A. (N.S.) 236, 85 N. E. 884, it is stated that a landowner has the right to change the surface of his lot, or improve it by the construction of buildings or by other means, in any lawful manner, and if the natural course of surface water is thereby altered no liability is imposed upon him; but this is coupled with the statement that he has no right to collect water into a channel, by a spout or otherwise, and put it upon a public way.

In Newcastle v. Kurtz (1904) 210 Pa. 183, 69 L.R.A. 488, 105 Am. St. Rep. 798, 59 Atl. 989, it was held that placing a conductor pipe so as to lead water from the roof of a building adjoining the sidewalk and empty it upon the walk in the manner customary in the community is not a nuisance per se, where it does not ordinarily interfere with travel, and that the property owner cannot be held liable to one who is injured by falling on ice formed upon the walk many years after the construction of the pipe, as the result of a severe and unusual storm.

Of course, some connection between the abutting owner's act or omission and the icy condition of the sidewalk must be established before he can be held liable to one injured

thereby.

Thus, in Moore v. Gadsden (1881) 87 N. Y. 84, 41 Am. Rep. 352, an abutting owner was held not to be liable for an injury suffered by one who slipped and fell upon ice on the ad

joining sidewalk, even though such ice was formed from rain or melting snow which ran from his steps and lawn, which sloped toward the sidewalk, and no barrier had been provided to prevent the water from running upon the sidewalk, where there was no evidence of any interference on his part with the sidewalk, or that the natural surface of his yard had been changed, or that the steps of his house had been constructed in any other than a proper and usual manner, the court taking the view that the case could not be distinguished from one where rain, falling directly on the walk, there congeals, or snow hardens thereon, as, in either instance, its presence is the result of natural causes, unaffected by artificial arrangement.

And in Greenlaw v. Milliken (1905) 100 Me. 440, 62 Atl. 145, a verdict against the abutting owner in an action by one who fell upon a sidewalk, which was alleged to have been rendered icy and dangerous by the carelessness of the defendant in having water improperly drawn and conducted from the roof of the house or bay window, and discharged thereon, was set aside on the ground that the plaintiff had failed to meet the burden of showing that the icy condition resulted from water artificially conducted onto the walk, and not from surface water naturally flowing there, or from melting snow which had fallen there.

And so, in Sanborn v. McKeagney (1918) 229 Mass. 300, 118 N. E. 263, it was held that an abutting owner was not liable to one who was injured by slipping on ice on the sidewalk in front of his premises, where it appeared that the ice was formed from water flowing from a conductor which drained a roof of the house adjoining the house of the defendant, and which was located on or near the dividing line between the two houses, where there was no evidence tending to show that the defendant controlled the conductor, or that any water from his premises drained into it.

Similarly, in Wenzlek v. McCotter (1881) 87 N. Y. 122, 41 Am. Rep. 58,

reversing (1880) 22 Hun, 60, it was held that an abutting owner was not liable to one who fell upon an icy sidewalk, even though it appeared that the ice was formed by water which was discharged upon the walk by a conductor pipe located upon his premises, where it appeared that the pipe was in existence in the same condition at the time he acquired title to the property, and that the water which was discharged thereby came wholly from adjoining premises, and that he had never made use of or interfered with it, and had not been requested to remove it, the court stating that a conductor pipe designed to convey water from the roof to the ground, when constructed with due care and proper precaution, is not in itself unlawful so that it can be deemed a nuisance, even if its mouth is toward the walk and discharges upon it.

In Valin v. Jewell (1914) 88 Conn. 151, L.R.A.1915B, 324, 90 Atl. 36, it was held that a property owner could not be held liable for injuries received by his tenant from falling upon the sidewalk in front of the leased premises while engaged in removing therefrom ice which had formed from water dripping from the roof of a porch over the entrance, which was so constructed that water and melting snow gathered upon it and, because of the absence of any conductor or other device, flowed directly upon the sidewalk in front of the premises, where the condition of the roof was obvious when the lease was made, and the landlord did not undertake to repair it, and the walk upon which the ice formed was a public sidewalk, and not a part of a common passageway which the landlord was bound to keep in repair. The court recognized, however, the possibility that there might be a liability under such circumstances to a traveler upon the sidewalk, but held that the tenant could not, under the circumstances of the case, be considered a traveler.

In Shipley v. Proctor (1901) 177 Mass. 498, 59 N. E. 119, 9 Am. Neg. Rep. 304, it was held that a statute providing that no city or town shall be liable for any injury on a highway

suffered by reason of snow or ice had no application to an action against an abutting owner.

b. Effect of liability of municipality or third person.

The fact that an abutting owner is not solely responsible for the dangerous condition of the walk will not relieve him of liability if his act or negligence has actually contributed thereto.

Thus, one who casts water upon a sidewalk so as to form ice dangerous to pedestrians is liable for injury caused thereby, although water from other sources contributes to the dangerous condition. Hynes v. Brewer (1907) 194 Mass. 435, 9 L.R.A. (N.S.) 598, 80 N. E. 503.

And in Dow v. Interborough Rapid Transit Co. (1918) 185 App. Div. 10, 172 N. Y. Supp. 623, it was held that the defendant would be liable even though the water which escaped from its leader merely aggravated an existing icy condition.

And in Gilland v. Maynes (1914) 216 Mass. 581, 104 N. E. 555, it was held that an abutting owner was not relieved of liability by the fact that the acts of children in brushing off ashes which he had placed on the ice had contributed to the nuisance.

In Tremblay v. Harmony Mills (1902) 171 N. Y. 598, 64 N. E. 501, 12 Am. Neg. Rep. 132, and Macauley v. Schneider (1896) 9 App. Div. 279, 41 N. Y. Supp. 519, it is stated that the fact that the city might also be liable would not relieve the abutter, if his acts or negligence had contributed to the unsafe condition of the street.

And in Field v. Gowdy (1908) 199 Mass. 568, 19 L.R.A. (N.S.) 236, 85 N. E. 884, it was held that an abutting owner who negligently turns water collected from his roof onto the walk is not relieved from liability for injuries to pedestrians who fall on the ice there accumulated, by the fact that the municipality has negligently left a depression in the sidewalk, since a landowner in turning water upon a public way is bound to take into account its actual condition, and to determine at his peril whether his act, in conjunc

tion with the way as it exists, will create a nuisance.

And in Adlington v. Viroqua (1914) 155 Wis. 472, 144 N. W. 1130, where it appeared that there was a culvert which was intended to convey the water discharged onto the abutting premises under the walk, instead of over it, but that at the time of the accident, and for a considerable period prior thereto, this culvert had been obstructed, it was held that even though it were conceded that the duty of keeping the culvert open was upon the city rather than upon the abutting owner, and that the dangerous condition would not have arisen had the culvert been kept clear, these facts would not excuse the defendant, where, with knowledge of the obstruction, he continued to discharge the surface water from his premises in a manner which he knew, or ought to have known, would cause an unsafe condition of the sidewalk.

And see Holyoke v. Hadley Water Power Co. (1899) 174 Mass. 424, 54 N. E. 889; Springfield v. Clement (1920) 205 Mo. App. 114, 225 S. W. 120; New York v. Dimick (1888) 49 Hun, 241, 2 N. Y. Supp. 46; Organ v. Toronto (1893) 24 Ont. Rep. 318 (holding that the city, after having paid a judgment, might recover over against the abutting owner); Reedy v. St. Louis Brewing Asso. (1901) 161 Mo. 523, 53 L.R.A. 805, 61 S. W. 859, and Beane v. St. Joseph (1922) 211 Mo. App. 200, 240 S. W. 840, subsequent appeal in (1923) -Mo. App., 256 S. W. 1093 (holding that the city and the abutting owner might be jointly liable)—which are set out, supra, III.

But with these cases compare Newcastle v. Kurtz (1904) 210 Pa. 183, 69 L.R.A. 488, 105 Am. St. Rep. 798, 59 Atl. 989, 1 Ann. Cas. 943, in which a municipality which had imposed the duty upon property owners of keeping the sidewalks in front of their property free from ice, under penalty, and provided that in case of a neglect to remove the ice it would be removed by the city at their expense, was held thereby to have assumed the duty of keeping the walks clear, and hence not to be entitled to recover over against

the property owners an amount which it had been obliged to pay as damages to one who fell upon ice formed on the sidewalk.

As to the effect of liability on the part of a tenant in possession of the premises, see the annotation in 29 A.L.R. 181, upon tenancy as relieving landlord from liability for injury to third person in street due to the snow or ice.

c. Prescriptive rights.

In several cases the abutting owners have sought to escape liability upon the ground that they had acquired a prescriptive right to turn the water across the sidewalk, but the courts seem to have held uniformly that the right to create or maintain a nuisance of that character is not a matter of grant, and cannot be acquired by prescription. Leahan v. Cochran (1901) 178 Mass. 566, 53 L.R.A. 891, 86 Am. St. Rep. 506, 60 N. E. 382; Hynes v. Brewer (1907) 194 Mass. 435, 9 L.R.A. (N.S.) 598, 80 N. E. 503; Isham v. Broderick (1903) 89 Minn. 397, 95 N. W. 224, 14 Am. Neg. Rep. 112.

d. Necessity for demand for abatement of nuisance.

In Wenzlick v. McCotter (1881) 87 N. Y. 122, 41 Am. Rep. 358, reversing (1880) 22 Hun, 60, it was held that, even though a conductor pipe located upon the defendant's premises at the time he acquired title thereto, but which he had never made use of or interfered with, and which discharged water coming wholly from adjoining premises, amounted to a nuisance, he could not be held liable until he had been requested to abate it.

But in Bixby v. Thurber (1922) 80 N. H. 411, 29 A.L.R. 175, 118 Atl. 99, it was said that no demand for abatement of a nuisance is necessary where public rights are involved.

And in Leahan v. Cochran (1901) 178 Mass. 566, 53 L.R.A. 891, 86 Am. St. Rep. 506, 60 N. E. 382, it was held that the rule requiring notice to a purchaser of property containing a nuisance, requesting its removal, before he is liable to an action for injuries caused by it, does not apply in favor of the purchaser of a house so con