GILBERT, Circuit Judge
(after stating the facts as above).
The plaintiffs were in possession of property which was protected against freshets by the natural channel of a stream sufficient to carry all flood waters. The defendants, •for their own benefit, closed the channel and made a new one, against the plaintiffs’ protest that the change would endanger their property. The plaintiffs requested an instruction to the jury that if they found that, if the artificial .channel had been built of a capacity equal to the natural channel, the plaintiffs’ property would not have been damaged by the flood, then the defendants were liable. Such an instruction would have been justified under the doctrine of the leading case of Rylands v. Fletcher, L.R. 3 H.L. 330, and other English cases cited by the plaintiffs, such as Greenock Corporation v. Caledonian R. Co., [1917] A.C. 556, in which the Lord Chancellor said: “It is the duty of any one who interferes with the course of a stream to see that the works which he substitutes for the channel provided by nature are adequate to carry off the water brought down even by an extraordinary rainfall, and if damage results from the deficiency of the substitute which he has provided for the natural channel, he will be liable.”
In 2 Farnham on Waters and Water Rights, 1634, 1635, it is said: “The channel in which a stream flows is a component part of the stream itself, and one owner cannot [924]*924change the flow of the water to another channel to the injury of a lower proprietor without being liable for the injury. * . * * One who undertakes to change the channel of a stream must see that the capacity of the new channel is in all respects equal to the old one, and he will be liable for injuries caused by the overflow of the stream in case it is not so; and the fact that the size is greater than that of the old channel will not relieve him from liability if it is constructed in such a manner as to be more likely to overflow” — citing Fletcher v. Smith, L.R. 2 App.Cas. 781.
To the same text may be cited McLean v. Crosson, 33 U.C.Q.B. 448. This inherently just and equitable doctrine of the English courts has been accepted in a few of the courts of the United States, as in Shipley v. Associates, 106 Mass. 194, 8 Am.Rep. 318, Wilson v. New Bedford, 108 Mass. 261, 11 Am.Rep. 352; Cohill v. Esatman, 18 Minn. 324 (Gil. 292), 10 Am.Rep. 184, and Knapheide v. Eastman, 20 Minn. 478 (Gil. 432), and no reason is suggested why it should not be applied to the present case except the reason — if it be a reason — that it is opposed to the decided weight of American authority.
But if that reason is controlling, and we are required to follow the rule generally accepted in the United States, that one who in changing the natural channel of a stream exercises reasonable precaution against floods which may be expected is not responsible for damages thereby occasioned, there still remains the fact that there is no evidence in the present case that the flood of September 26, 1918, was of such a character that it should not have been anticipated in the.exercise of reasonable care and prudence. The defendant Casey admitted that before the cribbing was put in on the banks of the creek he knew that at times of very high water the water would flow over the banks at any place. The defendants called three witnesses, who testified aá to their observation of floods in the stream during the last 10, 11, and 15 years, and their testimony covering as it does so short a period of time may be held negligible. The defendants also called witnesses who had observed the stream for longer periods. Coggins, who had lived in Juneau 23 years when asked whether he had ever seen [925]*925freshets as high as that of 1918 answered, “I could not say whether I did or not.” He testified, further, that he had seen other freshets and could not say whether they were as high as that of 1918. “They might have been higher for all that I know.” Layton was asked whether within his memory of 30 years he had seen as great a rainfall, or as high water as on September 26, 1918. He answered, “No, I don’t think so.” Behrens, who had been 32 years at Juneau, said that he thought the flood was the highest he had ever seen, but he would not undertake to say positively that it was. The defendants are bound by this testimony, which they themselves introduced. It is wholly insufficient to show that the flood was of an extent and character which the defendants were not bound to anticipate. The plaintiffs excepted to the instructions of the court upon the question of an ordinary flood as not being sufficient under the testimony in the case. We think that the exception was well taken.
“An ordinary flood is one, the repetition of which, though at uncertain intervals, might, by the exercise of ordinary diligence in investigating the character and habits of the stream in which it occurs, reasonably have been anticipated. An extraordinary flood is one of those unexplainable visitations whose comings are not foreshadowed by the usual course of nature, and whose magnitude and destructiveness could not have been anticipated or provided against by the exercise of ordinary foresight.” 13 Am. & Eng.Ency. of Law (2d Ed.) 687.
The flood in the present case was not an “unexplainable visitation.” It was caused by no cloudburst or other catastrophic phenomenon, so as to be classed as an act of God. It was caused solely by a heavy downfall of rain at a time when heavy rains were to be expected. In Ohio, etc., R. Co. v. Ramey, 139 Ill. 9, 28 N.E. 1087, 32 Am.St.Rep. 176, it was said: “The principle, clearly, is that, although a rainfall may be more than ordinary, yet if it be such as has occasionally occurred, and it may be at irregular intervals, it is to be foreseen that it will occur again, and it is the duty of those changing or restraining the flow of water to provide against- the consequences that will result from it. It is within the knowledge of all who have long resided in this state that our streams are occasionally subject, after inter[926]*926vals which are sometimes of shorter and at other times of longer duration, to great floods, occasioned by very heavy rainfalls, and their heights are known by those who have felt interested in them. Such rainfalls were not usual and ordinary, but they were unusual and beyond ordinary; i. e., they were extraordinary, and yet it is just as certain that like rainfalls will occur in the future as it is that the same laws of nature by which they are produced, and the same conditions to be affected by those laws, will continue to exist in the future as they have in the past.”
It was there held that a cloudburst which had at irregular and infrequent intervals occurred within the memory of man in a particular locality was not to be classed as a vis major. So in Gulf, etc., R. Co. v. Pomeroy, 67 Tex. 498, 3 S.W. 722, the court held that, if extraordinary inundations had occurred within the memory of men then living, their recurrence should be anticipated and provision made against the danger likely to result therefrom should a recurrence of the flood take place. In Gulf Red Cedar Co. v. Walker, 132 Ala 553, 31 So. 374, the court said: “The term ‘act of God/ in its legal sense, applies only to events in nature so extraordinary that the history of climatic variations and other conditions in the particular locality affords no reasonable warning of them.”
In Realty Co. v. Railroad, 154 Mo.App. 364, 134 S.W.
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GILBERT, Circuit Judge
(after stating the facts as above).
The plaintiffs were in possession of property which was protected against freshets by the natural channel of a stream sufficient to carry all flood waters. The defendants, •for their own benefit, closed the channel and made a new one, against the plaintiffs’ protest that the change would endanger their property. The plaintiffs requested an instruction to the jury that if they found that, if the artificial .channel had been built of a capacity equal to the natural channel, the plaintiffs’ property would not have been damaged by the flood, then the defendants were liable. Such an instruction would have been justified under the doctrine of the leading case of Rylands v. Fletcher, L.R. 3 H.L. 330, and other English cases cited by the plaintiffs, such as Greenock Corporation v. Caledonian R. Co., [1917] A.C. 556, in which the Lord Chancellor said: “It is the duty of any one who interferes with the course of a stream to see that the works which he substitutes for the channel provided by nature are adequate to carry off the water brought down even by an extraordinary rainfall, and if damage results from the deficiency of the substitute which he has provided for the natural channel, he will be liable.”
In 2 Farnham on Waters and Water Rights, 1634, 1635, it is said: “The channel in which a stream flows is a component part of the stream itself, and one owner cannot [924]*924change the flow of the water to another channel to the injury of a lower proprietor without being liable for the injury. * . * * One who undertakes to change the channel of a stream must see that the capacity of the new channel is in all respects equal to the old one, and he will be liable for injuries caused by the overflow of the stream in case it is not so; and the fact that the size is greater than that of the old channel will not relieve him from liability if it is constructed in such a manner as to be more likely to overflow” — citing Fletcher v. Smith, L.R. 2 App.Cas. 781.
To the same text may be cited McLean v. Crosson, 33 U.C.Q.B. 448. This inherently just and equitable doctrine of the English courts has been accepted in a few of the courts of the United States, as in Shipley v. Associates, 106 Mass. 194, 8 Am.Rep. 318, Wilson v. New Bedford, 108 Mass. 261, 11 Am.Rep. 352; Cohill v. Esatman, 18 Minn. 324 (Gil. 292), 10 Am.Rep. 184, and Knapheide v. Eastman, 20 Minn. 478 (Gil. 432), and no reason is suggested why it should not be applied to the present case except the reason — if it be a reason — that it is opposed to the decided weight of American authority.
But if that reason is controlling, and we are required to follow the rule generally accepted in the United States, that one who in changing the natural channel of a stream exercises reasonable precaution against floods which may be expected is not responsible for damages thereby occasioned, there still remains the fact that there is no evidence in the present case that the flood of September 26, 1918, was of such a character that it should not have been anticipated in the.exercise of reasonable care and prudence. The defendant Casey admitted that before the cribbing was put in on the banks of the creek he knew that at times of very high water the water would flow over the banks at any place. The defendants called three witnesses, who testified aá to their observation of floods in the stream during the last 10, 11, and 15 years, and their testimony covering as it does so short a period of time may be held negligible. The defendants also called witnesses who had observed the stream for longer periods. Coggins, who had lived in Juneau 23 years when asked whether he had ever seen [925]*925freshets as high as that of 1918 answered, “I could not say whether I did or not.” He testified, further, that he had seen other freshets and could not say whether they were as high as that of 1918. “They might have been higher for all that I know.” Layton was asked whether within his memory of 30 years he had seen as great a rainfall, or as high water as on September 26, 1918. He answered, “No, I don’t think so.” Behrens, who had been 32 years at Juneau, said that he thought the flood was the highest he had ever seen, but he would not undertake to say positively that it was. The defendants are bound by this testimony, which they themselves introduced. It is wholly insufficient to show that the flood was of an extent and character which the defendants were not bound to anticipate. The plaintiffs excepted to the instructions of the court upon the question of an ordinary flood as not being sufficient under the testimony in the case. We think that the exception was well taken.
“An ordinary flood is one, the repetition of which, though at uncertain intervals, might, by the exercise of ordinary diligence in investigating the character and habits of the stream in which it occurs, reasonably have been anticipated. An extraordinary flood is one of those unexplainable visitations whose comings are not foreshadowed by the usual course of nature, and whose magnitude and destructiveness could not have been anticipated or provided against by the exercise of ordinary foresight.” 13 Am. & Eng.Ency. of Law (2d Ed.) 687.
The flood in the present case was not an “unexplainable visitation.” It was caused by no cloudburst or other catastrophic phenomenon, so as to be classed as an act of God. It was caused solely by a heavy downfall of rain at a time when heavy rains were to be expected. In Ohio, etc., R. Co. v. Ramey, 139 Ill. 9, 28 N.E. 1087, 32 Am.St.Rep. 176, it was said: “The principle, clearly, is that, although a rainfall may be more than ordinary, yet if it be such as has occasionally occurred, and it may be at irregular intervals, it is to be foreseen that it will occur again, and it is the duty of those changing or restraining the flow of water to provide against- the consequences that will result from it. It is within the knowledge of all who have long resided in this state that our streams are occasionally subject, after inter[926]*926vals which are sometimes of shorter and at other times of longer duration, to great floods, occasioned by very heavy rainfalls, and their heights are known by those who have felt interested in them. Such rainfalls were not usual and ordinary, but they were unusual and beyond ordinary; i. e., they were extraordinary, and yet it is just as certain that like rainfalls will occur in the future as it is that the same laws of nature by which they are produced, and the same conditions to be affected by those laws, will continue to exist in the future as they have in the past.”
It was there held that a cloudburst which had at irregular and infrequent intervals occurred within the memory of man in a particular locality was not to be classed as a vis major. So in Gulf, etc., R. Co. v. Pomeroy, 67 Tex. 498, 3 S.W. 722, the court held that, if extraordinary inundations had occurred within the memory of men then living, their recurrence should be anticipated and provision made against the danger likely to result therefrom should a recurrence of the flood take place. In Gulf Red Cedar Co. v. Walker, 132 Ala 553, 31 So. 374, the court said: “The term ‘act of God/ in its legal sense, applies only to events in nature so extraordinary that the history of climatic variations and other conditions in the particular locality affords no reasonable warning of them.”
In Realty Co. v. Railroad, 154 Mo.App. 364, 134 S.W. 1034, it was said: That “the history of the country as to” floods should “be taken into consideration,” and where similar “extraordinary inundations have occurred within the memory of men then living, their recurrence should be anticipated and provided against.”
In Hartshorn v. Chaddock, 135 N.Y. 116, 31 N.E. 997, 17 L.R.A. 426, the court said: “Irrespective of any question of negligence or malice, a riparian owner who by his willful act diverts the waters of a natural stream from its accustomed channel, and causes them to flow upon the lands of his neighbor, is liable for the resulting damages.”
Answering the contention that the flood in question “was so extraordinary and unusual as to be deemed an act of God,” the court said: “It is found that, though the freshet was unusual, with respect to the volume of water, yet that similar ones, but of less power, have occurred in the past, [927]*927and are liable to occur in the future from heavy rains or melting of snow.”
In Mundy v. New York, etc., R. Co., 75 Hun, 479, 27 N.Y.S. 469, it appeared that a flood which occurred in 1889 was unusual in respect to the volume of water, yet that similar floods, but of less power, had occurred in 1833 and 1865, and that the river had for many years been subject to sudden variations and heavy rises. It was held that the flood of 1889 was not so extraordinary as to relieve the defendant from liability.
The judgment is reversed, and the cause is remanded for a new trial.