The plaintiffs’ exceptions should be overruled, and the motion for a new trial denied, with costs.
The action was brought to recover damages for injuries to crops and land occasioned - by setting back water. The railroad ran east and west. The plaintiffs’ lands lay just south of the railroad. Along through the center of plaintiffs’ land was a ridge, north and south, higher than other land in the vicinity. Many years ago the railroad constructed a ditch upon its right of way running easterly from this ridge and emptying into a state ditch, and another one running westerly from this ridge and emptying into the Seneca river. There was no water course in this locality. The ditches were designed to take care of surface water merely. The plaintiff dug ditches on his land connecting with the railroad ditches, and his neighbor next south of him dug ditches connecting with plaintiff’s ditches, so that the surface water from plaintiff’s and his neighbor’s lands, which were higher than the railroad right of way, discharged their surface water into and through the railroad ditches. In 1902 and 1903 the railroad had permitted its ditches to become filled up, so that they failed to carry off this surface water, and it was set or held back upon plaintiffs’ lands, and did damage to plaintiffs’ crops and land, and for this the action was brought.
There seems to be no doubt as to the law applicable to this case. The only questions are of fact. In Barkley v. Wilcox, 86 N. Y. 140, 40 Am. Rep. 519, it was held that the lower proprietor was under no obligation to take care of the surface water of his adjoining upper proprietor, and he might fill in and improve his lower lands, though by so doing he prevented the flow of the surface water upon his lands from his upper neighboring proprietor, to the latter’s damage; and it has been frequently held that a railroad incurred no liability as to surface water by building its embankment.' Erwin v. Erie R. R. Co., 98 App. Div. 402-405, 90 N. Y. Supp. 315, and the cases therein referred to. The same rule was recognized in Branson v. N. Y. C., etc., Co., 111 App. Div. 737, 739, 740, 97 N. Y. Supp. 788. A recovery was there permitted by reason of the fact that as to some of the water, from lands other than plaintiff’s the railroad company gathered them into a channel and threw them back upon plaintiff’s lands.
As to the facts here it seemed to be established that the railroad was the lower proprietor, it saw fit to dig two ditches upon its own land to take care of its surface water, the plaintiff dug its ditches, connecting them with the railroad’s ditches to carry off its (plaintiff’s) surface water from land above the railroad’s, and plaintiff’s neighbor above dug ditches connecting with plaintiff’s to take care of his surface water. While the railroad’s ditches were kept open, all the surface water from above was taken care of; but, when the railroad ditches were allowed to become obstructed, the surface water did not run off freely, but set or was held back upon plaintiff’s premises. If the railroad set its surface water back on plaintiff’s land, it would be liable for the damage occurred thereby; but it does not appear any damage *120was occasioned by the railroad surface water. All the surface water from above was set or held back, and even if it was possible some of the railroad water was set back also with the surface water from above, how could it be said the damage was caused by the railroad’s water? Its land was the lower, and, unless it was established affirmatively that the water was set back and thrown upon plaintiff’s land and did damage, no recovery could be had. It was not so established by the evidence given on the trial. The railroad company could not be held liable because it allowed its ditches to become filled up, so as not to take care of the surface water of its upper proprietor.
The nonsuit was properly granted.
Plaintiffs’ exceptions overruled, motiou for new trial denied, and judgment ordered for the defendant upon the nonsuit, with costs. All concur.