Both you and Mr. Brickwedde above have advanced this proposition, but I'm wondering if that's because of a "common sense" interpretation of the law of "nuisance" more than what the common law says, at least as I seem to recall it hazily from my law school days (I have never litigated a case that relies on the common law because of the more pervasive stormwater management standards these days that seem to have addressed this problem through regulation).

I did a (very) quick Google Scholar search on point, and found a 1958 Court of Appeals case, Kossoff v. Rathgeb-Walsh, 3 NY2d 583, which says the "upper" owner can fill his land and not face a nuisance lawsuit for damages, but a lower owner cannot "dam" his land to revert the runoff. In pertinent part, the Court states:

"Under the common law adopted in this State, either proprietor can improve his land according to his own desire in any manner to which the land is suited, without being liable to the abutting owner for change in the flowage of the surface water provided that he does not resort to drains, pipes or ditches. Under the civil law the lower owner could not dam up the surface water and flood the land of the upper proprietor; under the common law he can do so. There is little discussion in Barkley v. Wilcox in respect to what the upper owner may do to his property, inasmuch as his rights to improve his land were not questioned in that case under either the civil law or the common law. The question was whether the lower owner could throw back the water by raising his grade, which he could not have done if the civil law applied. The conclusion was reached that upper and lower owner each has the right to improve his property, and that the lower owner is not to be discriminated against in this regard in favor of the upper. It was not the thought in adopting the common-law rule, that the lower owner could back up the surface water in improving his property so as to flood the cellar of the upper owner without there being a 589*589 corresponding immunity from liability on the part of the upper owner, if such a result occurred to the lower owner from the improvement of the land of the upper owner. This is made explicit by the dictum in the opinion by DENIO, Ch. J., in Goodale v. Tuttle (29 N.Y. 459, 467) which is adopted in Judge CHARLES ANDREWS' opinion in Barkley v. Wilcox (supra, p. 144) as the basis for the Barkley decision, viz.: "And in respect to the running off of surface water caused by rain or snow, I know of no principle which will prevent the owner of land from filling up the wet and marshy places on his own soil for its amelioration and his own advantage, because his neighbor's land is so situated, as to be incommoded by it. Such a doctrine would militate against the well-settled rule that the owner of land has full dominion over the whole space above and below the surface."

http://bit.ly/YQ0Lrv

The case seems to be good law today, so long as the upper owners don't use "artificial" means to drain their lands, like ditches or pipes to convey the runoff:

http://bit.ly/YQ0O6p