ADAMS, J. The road was constructed in 1870 by the Chicago & Southwestern Railroad Company. The defendant in 1872 succeeded to the rights of that company. At the time the road was constructed the land in question was owned by the plaintiff's grantor. The plaintiff became the owner in 1874. From the time of the construction of the road in 1870 to 1876 no damage appears to have resulted to the land in question. In the latter year the plaintiff began to complain. Soon afterward the defendant constructed a ditch along its right of way from the plaintiff's land to an opening in the road where the same was constructed upon trestle work. This ditch was reasonably successful as a drain until 1880, when it became obstructed by accumulated dirt and other matter, and while the defendant made some effort to remove the obstructions, they were not in fact sufficiently removed, and during the cropping seasons of 1880 and 1881 water accumulated upon the plaintiff's land, being prevented primarily by the embankment from escaping, and not afforded a sufficient outlet by the ditch. Certain crops were destroyed, and a portion of the land was rendered wholly untilla. ble.

The defendant contends that it did not become liable for any damages, and that if it did this action is barred by the statute of limitations; and furthermore that the court mistook the proper means of damages and allowed improper evidence to be introduced.

1. The first question which represents itself as to whether the defendant owed the plaintiff any duty in respect to the surface water. The court below thought that it did. It gave an instruction in these words: "In my judgment the railroad company is under legal obligations in constructing its railroad through the country, in crossing farms and land generally, to so construct its embankment as not to flow surface water back from the land through which it passes. I do not think that the common law, with reference to the right of owners of town lots or other lands to fight surface water from them, can justly be made to apply to railroad companies."

The general doctrine relied upon by the defendant to the effect that every land-owner has the right to exclude surface water from his premises was fully recognized in O'Connor v. Fon du Lac, A. & P. Ry. Co., 52 Wis. 526; 38 Am. Rep. 754; 9 N. W. Rep. 287, and held to apply even to railroad companies. The court in that case said: "The company has only obstructed a ditch which drained or carried off surface water from the plaintiff's premises. We do not think that the defendant was bound to keep that ditch open on its own laud for the convenience of the plaintiff. In other words, the owner of land is under no legal obligations to provide a way for escape of mere surface water coming on to his land from the land of his neighbor, but has the right to change the surface so as to interfere with or obstruct the flow of such water."

In Gannon v. Hargadon, 10 Allen, 109, a case between adjacent land-owners, the court said: "The right of the owner of land to improve and occupy 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 thereon, is not restricted or modified by the fact that his 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 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." See also in this connection Parks v. Newburyport, 10 Gray, 28; Wilson v. Mayor, etc,, 1 Den. 595; Cairo R. Co. v. Stevens, 73 Ind. 278; 38 Am. Rep. 139; Barkley v. Wilcox, 86 N. Y. 140; 40 Am. Rep. 519; Morrison v. Rail

road Co., 67 Me. 353; Lynch v. Mayor, 76 N. Y. 69; 32 Am. Rep. 271; Taylor v. Fickas, 64 Ind. 167; 31 Am. Rep. 114; Gibbs v. Williams, 25 Kan. 214; Grant v. Allen, 41 Conn. 156.

As holding a different doctrine, the plaintiff cites Ogburn v. Connor, 46 Cal. 346; 13 Am. Rep. 213; Footle v. Clifton, 22 Ohio St. 247; Parter v. Durham, 74 N. C. 769; Gillham v. Madison Co. R. Co., 49 Ill. 484; Gormley v. Sanford, 52 Ill. 158; Livingston v. McDon ald, 21 Iowa, 160; Cornish v. C., B. & Q. R. Co., 49 id. 378; Van Orsdol v. B., C. R. & N. R. Co., 56 id. 470; 9 N. W. Rep. 379.

In the case last cited the court held that a railroad company could not be allowed to obstruct a natural channel of water. In Livingston v. McDonald the court held that the owner of the higher land could not be allowed to collect water and precipitate it in increased quantities to the land below, to the injury of such land. The question as to whether a land-owner can be allowed, by changing the surface of his land, or erecting improvements thereon, to prevent the escape of surface water from adjacent land, where the same did not flow through any channel, has never been determined by this court; and we have to say that it ap pears to us that such question does not necessarily arise in the case at bar. The cases cited arose between adjacent owners.

There is no evidence that the defendant owns the land which it occupies with its road. Its right was probably that of an easement. It is not claimed by the plaintiff that the defendant is a mere trespasser, and in the absence of any averment or evidence to that effect we could not assume that it is. The parties have proceeded upon the theory that defendant's occupaney is rightful. In the absence then of evidence as to the extent of defendant's right in the premises, we may assume that it is sufficient to make its occupancy rightful, and we cannot assume more. We may proceed then upon the theory that the defendant has an easement. The plaintiff's testimony shows that the railroad crosses his land, and we find no evidence to the contrary.

The defendant's estate then appears not only to be an easement, but it is one to which the plaintiff's es tate is the subject or servient estate. The easement, we may assume, was acquired by proceedings for condemnation under the statute, or by purchase, and it matters not which. The important question is as to what the defendant or its grantor, the original owner of the easement, must be presumed to have paid for. In Stodghill v. C., B. & Q. R. Co., 43 Iowa, 26, it was held that the defendant paid for what the commissioners should properly have considered in their estimate, and among the things was not included the right to divert a natural stream of water. On the other hand it is to be observed that in Sabin v. Vermont Cent. R. Co., 25 Vt. 363, it was held that the right-ofway damages covered the right to cast rock on the adjacent premises by blasting, so far as was necessary in the construction of the road. The draining of wells and the diversion of water courses, it is said, are covered by the right-of-way damages where the same are necessary in the construction of the road. Prop'rs of Locks and Canals v. Railroad Co., 10 Cush. 485. If we could suppose a case where the construction of a railroad would necessarily interfere with the flow of surface-water, and cause it to accumulate and stand on the land from which the right of way is taken, the injury that would accrue therefrom should, we think, be considered by the commissioners, and embraced in their appraisement of right-of-way damages. The laud-owner is entitled to be paid, not merely the value of the land taken, but for all incidental injuries which must necessarily result from the proper construction and maintenance of the road. Kucheman v. C., C. &

D. Ry. Co., 46 Iowa, 466; Imlay v. Railroad Co., 26 Conn. 249.

But the undisputed evidence in the case at bar shows that the drainage of the surface water from the plaintiff's premises was easily maintainable by the construction and maintenance of a ditch along the defendant's right of way to its trestle work. The case is not different from what it would have been if the defendant could have effected the drainage by the construction and maintenance of one or more culverts. Where the effect of a mere embankment would be to obstruct the passage of surface water and cause damage to the premises from which the right of way is taken, but sufficient drainage can be easily secured by a ditch or culvert, it appears to us that when the company applies for a right of way it could not be presumed to be desirous of securing and paying for the privilege of obstructing the passage of the water. Such being our view, we could not say that the right to obstruct the passage of the water was included in the right-of-way damages. The owner then of the premises from which the right of way was taken was paid, as we must presume, upon the theory that the company preferred to protect him against this incidental injury. The very enjoyment of the easement therefore carried with it day by day the obligation to furnish this protection. Possibly this would not be so if the evidence showed or we could assume that the company acquired the fee-simple title to the land which it occupies. Without committing ourselves to an approval of the instruction as a general and unqualified proposition, we have to say, that as applied to the facts of this case, it appears to us to be correct.

2. It is not shown that the plaintiff expressly notified the defendant of the effect upon his land of the construction of the embankment without suitable drainage. The defendant insists that inasmuch as the embankment was not constructed by itself, but by its grantor, it did not become liable in the absence of notice. It cites and relies upon Slight v. Gutzlaff,35 Wis.675; 17 Am. Rep. 476. In that case Ryan, C. J., says: "When a lessee or grantee continues a nuisance of the nature not essentially unlawful, erected by his lessor or grantor, he is liable to action for it only after notice to reform or abate it;" citing McDonald v. Gilman, 3 Allen, 264; Johnson v. Lewis, 13 Conn. 307; and several other cases. See also in this connection the late case of State v. Robinson, 52 Iowa, 228; 2 N. W. Rep. 1104. But the case at bar, it appears to us, is distinguishable. The defendant seems to have become aware of the effect of the embankment in preventing the escape of surface-water from the plaintiff's land, and actually abated the nuisance, but afterward suffered a nuisance to arise again by suffering the ditch to become obstructed. We have discovered no decision or principle upon which we could hold that the defendant was entitled to notice.

3. We have next to consider whether the plaintiff's claim is barred by the statute of limitations. The first injury was sustained in 1876. This action was brought in 1882, more than five years thereafter. Without question, an action for the injury sustained in 1876 would be barred, but the plaintiff makes no claim for that injury. The defendant's position however is that the moment the plaintiff's land was overflowed he had a right, if the circumstances were such as to give him a right of action, to maintain an action once for all upon the theory that no protection would be furnished him, and that his damages would be measured by the diminution of the value of his premises by the construction of the road in the manner in which it was, without ditch or culvert then or thereafter to be furnished. He relies upon Powers v. Council Bluffs, 45 Iowa, 652. In that case the whole injury was re

garded as being received at one time, and that being more than five years before the commencement of the action, it was held to be barred. But the injury in that case was of such a character that it was beyond the city's power to remedy it. The remedy to be applied, if any, was by the construction of a wall on the plaintiff's premises where the city had no right to go. The remedy in the case at bar is to be applied on the defendant's premises, and that too in the discharge of a subsisting obligation. The case falls under McConnell v. Kibbe, 29 111. 483, and Bowyer v. Cook, 4 Man., Gr. & S. 236. In our opinion the plaintiff's action is not barred.

4. The plaintiff was allowed, against the objection of the defendant, to testify in substance that the land in question would, if it had not been flooded, have produced as much corn as he raised in other land, and that he guessed that it would have produced from 40 to 50 bushels per acre, and that the corn would have been worth $15 per acre. It is not usual, we think, where ungrown crops are destroyed by being flooded, to allow witnesses to go into a definite calculation of what the crops would have been worth, based upon evidence as to the quantity and value of other crops. All calculations which embrace speculative profits should, as far as the nature of the case will allow, be carefully excluded. Ungrown crops are a part of the realty. The injury done is to be deemed an injury to the realty. The question is as to how much the premises were diminished in value.

In Chase v. N. Y. Cent. R. Co., 24 Barb. 273, an action for damages sustained by reason of an overflow of water upon the plaintiff's premises, caused by the defendant's embankment, it was held that the jury was correctly instructed that the measure of the plaintiff's damages was the difference between the value of the plaintiff's premises immediately before the injury happened, and the value of the same immediately after. Substantially the same rule was held in Easterbrook v. Erie Ry. Co., 51 Barb. 94. Where the flooded premises are covered by an ungrown crop their value should of course be estimated with reference to the crop. But then the estimate should be made with reference to the crop at the time of the injury. In the case at bar the flood occurred in the early part of the season, when the corn was for the most part about a foot high. The premises were enhanced in value much or little by the crop, according to its condition and prospects. But whatever its condition and prospects might have been, it, like all other ungrown crops, was exposed to adverse contingencies, and its value could not, we think, properly be estimated upon the basis of the proven value of some other crop which matured, because the very fact that it was exposed, and was involved in more or less uncertainty, detracted from its value as it stood at the time of the injury, and we are confined in our estimate to that time.

In other respects also we think that the evidence admitted was unreliable. It appears from the evidence that the corn which was destroyed was upon low ground. The neighboring fields of corn which matured must, we think, have been upon higher ground. Now if the season was already wet, as we infer, at the time of the injury, it seems to us that the comparison sought to be made was an unsafe one, and that the evidence should have been excluded. It was proper to show any fact or circumstance pertaining to the condition and prospects of the crop, so far as the same were discoverable at the time of the injury, because such facts and circumstances affected the value of the premises at that time. The jury was entitled to consider whatever it may be presumed would have been considered by a careful person desiring to buy. Looking at the premises in this way, as they were im

(supra) implies, leads to "intemperance, 'pauperism and crime."

Other points presented by the learned counsel for the appellants have been considered, but we find no error. In this conclusion we agree with the General Term, and therefore their judgment should be affirmed.

All concur.

Judgment affirmed.

SHERIFF'S POUNDAGE.

NEW YORK COURT OF APPEALS, APRIL 15, 1884.

FLACK V. STATE.

A judgment debtor dying while in custody under a body execution, the sheriff has no claim for poundage, under 2 Rev. Stat. 645, § 38.

He must show either a collection of the moneys called for, interference by the judgment creditor with his execution of the process, or the discharge of the judgment debtor under the provisions of the act for the relief of imprisoned debtors: the arrest of the debtor is in no just sense the equivalent of a collection.

The history of the legislation upon the subject given and the authorities collated and discussed.

APPEAL from order of the General Term of the

Supreme Court, in the first judicial department, made January 11, 1883, which affirmed a decision of the State board of audit, disallowing a claim presented by the executors of the will of William C. Conner, late sheriff of the county of New York, for poundage upon an execution.

A. J. Vanderpoel, for appellant.

D. O'Brien, Attorney-General, and W. A. Post,"for respondent.

RUGER, C. J. The plaintiff's testator while sheriff of the county of New York received for collection an execution upon a judgment in an action wherein the people of the State were plaintiffs and William M. Tweed was defendant.

The plaintiffs, having recovered their judgment for upward of six and a half millions of dollars, issued an execution thereon against the property of the defendant, which having been returned nulla bona, thereupon issued the execution against the person of the defendant.

On December 20, 1876, the sheriff arrested the defendant upon the execution, and retained him in custody until December 31, 1876, when his term of office having expired in pursuance of the statute, he transferred the process, with the body of the defendant, over to his successor.

No moneys were collected by either sheriff upon the process, and the defendant therein was retained in custody until his death, which occurred April, 12, 1878.

The plaintiffs claim that they are entitled to poundage accruing to their testator upon this execution under the statute regulating the compensation of sheriffs.

A brief reference to some of the salient features in the history of legislation on the subject will enable us to appreciate the bearing of the cases cited on the question presented by this appeal.

Prior to the enactment of the statute of 29 Eliz., ch. 4, the charges of sheriffs for executing writs for the collection of judgments was entirely unregulated by statute. Under this condition of the law grave abuses had sprung up, and sheriffs and their servants were accustomed to practice extortion, not only upon the persons against whom process issued, but also from the plaintiffs therein. By that act, which was en

titled, "An act to prevent extortion in sheriffs in cases of execution," it was provided, "that for serving and executing any writ or execution upon body, lands, goods or chattels," the sheriff should not take more than twelve pence in the pound for the first £100, and six pence in the pound for all above £100. By this act the sheriff was not authorized to levy his fees by virtue of the execution, but they were payable in all cases by the plaintiff in the process. With some immaterial changes this continued to be the law in England until by chapter 46 of the 43 George III, they were authorized to include in their levy upon a fi. fa. upon the goods of the defendant the amount of their charges for poundage and expenses over and above the amount of the judgment. Under this statute the sheriff still had no right to exact poundage from the defendant upon a writ of ca. sa., but his charges for services were payable by the plaintiff therein. Hayley v. Racket, 5 M. & W. 620. It was not until the 15 and 16 Victoria, ch. 76, that sheriffs were authorized to collect, by virtue of the writ, poundage fees and expenses upon a ca. sa. from the defendant. Under these statutes it has been uniformly held in England, as will be seen by the cases hereafter cited, that sheriffs did not become entitled to poundage upon executions until they had collected the money called for by such writs.

The statute of 29 Elizabeth was the law of this State until by the passage of chapter 25 of the Laws of 1789, it was provided that a sheriff should be entitled to charge fees for "serving an execution for or under £100 six pence per pound, and for every pound more than £100 three pence, the poundage on writs of fieri facias, and all other writs for levying money, to be taken only for the sum levied." With immaterial changes this statute continued the law of this State until the adoption of the provisions of the Revised Statutes.

In a recent case in this court it was said, that "the right of a sheriff to fees is derived from, and depends altogether upon the statute. At common law he could not lawfully collect or receive them." Campbell v. Cothran, 56 N. Y. 281; 2 B. & A. 562; 1 Chit. 295; Graham v. Grill, 2 M. & S. 294.

The plaintiffs must therefore establish their right to the fees in question under the statute in force at the time the services were rendered, and if they do not bring themselves within its terms they must necessarily fail in their claim. The material part of that statute reads as follows: "For serving""; "an execution for the collection of money," "for collecting the sum of $250 or less, two cents and five mills per dollar; and for every dollar collected more than $250, one cent and two and a half mills." "The fees herein allowed for the service of an execution, and for advertising thereon, shall be collected by virtue of such execution in the same manner as the sum therein directed to be levied." 2 Rev. Stat.645 (orig. ed.),§ 38. The language of this provision seems to be plain and unambiguous, and clearly removed from the possibility of misconstruction. The services for which compensation is provided are those for "collecting "the moneys called for by the execution, and the fees are computable only upon the amount "collected," and are made collectible by virtue of the execution alone.

To bring the claim of a sheriff within the provisions of the statute, it is essential that he show either the collection of the moneys called for, or some interference by the plaintiff with his execution of the process that is equivalent thereto. It has been uniformly held in England as well as in this country, under all statutes giving fees to sheriffs upon executions, that a judgment creditor cannot, after placing process in the hands of the officer and inducing him to move forward in the work of executing it, interfere to prevent its en