Holden, J.,
delivered the opinion of the court.
The gist of the complaint of the landowners between the levee and the river and west of the river is: First, that the commissioners of the levee district have no right to levee against vagrant flood waters which have left the channel of Coldwater river and spread over the adjacent lands of the valley, thereby causing irreparable injury by diverting the water upon their lands; second, that if the levee commissioners have such right, then in exercising it they have no authority to obstruct the outlets or natural water courses connecting with the river through which its flood waters pass and spread generally over the lands of the valley, and eventually return to the channel many miles below.
The levee commissioners contend that they have both rights under the law; that the damming against flood waters is a right which includes obstructing outlets of the river. The commissioners claim, however, that [320]*320the second right has not been exercised here because the outlets are not connected with the river, are not proper water courses, and that the complainants are not riparian owners. These claims are relatively material, as will be seen later on, but we shall consider the two main questions involved while assuming* there is no merit ini the latter claims of the commissioners, so we may go directly and definitely to the two very important and decisive points in the case.
On the first proposition we think that when the flood waters left the channel of Coldwater river and spread for miles upon the lands in, the basin or adjacent valley, they are to be characterized as vagrant flood waters as distinguished from ordinary surface 'or rain waters, or regular running stream waters. ~*
The complaint of appellees is not against the obstruction of the latter kind of waters, but it is against the damming of the flood waters that left the river channel and spread indiscriminately for miles over the land in-the’ basin. A portion of these waters were wont to pass out further into the basin through outlets that were obstructed by the levee; therefore we shall now deal solely with vagrant flood waters, against which the levee Avas built for protection, and which resulted in damaging appellees by diverting them upon their lands.
The question then is, Did the leAUe commissioners haAre the legal right to protect the lands in the district by leveeing against these Avaicrs, and thus incidentally throAving them upon the oAvners outside of. the district? We think so.
Such diversion of vagrant flood waters, Adíen incident to and reasonably necessary, to the effective protection of the lands in the levee district, is Avithin the phrase “damrmm absque injuriaThe damages resulting are Avithout legal injury, and must be borne for the common good. The act causing the damage is done for protection against the common enemy — roaming flood [321]*321waters. It is similar in principle to the right to protect, from violence against an outlaw who runs amuck, even! though a neighbor is incidentally hurt ini the exercise of the right.
This doctrine has been approved by our courts before and since the adoption of our Constitution of 1890. We find it expressed in the cases of Board of Levee Commissioners v. Harkleroads, 62 Miss. 807; Richardson & May v. Levee Commissioners, 68 Miss. 539, 9 So. 351; Richardson v. Board of Levee Commissioners, 77 Miss. 518, 26 So. 963; Kansas, City, etc., Railroad Co. v. Smith, 72 Miss. 677, 17 So. 78, 27 L. R. A. 762, 48 Am. St. Rep. 579; Ham v. Levee Commissioners, 83 Miss. 534, 35 So. 943; Holman v. Richardson, 115 Miss. 169, 76 So. 136, L. R. ,A. 1917F, 942.
The principle is also announced and applied by the supreme court of the United States in the cases of Jackson v. United States, 230 U. S. 1; 33 Sup. Ct. 1011, 57 L. Ed. 1363; Hughes v. United States, 230 U. S. 24, 38 Sup. Ct. 1019, 57 L. Ed. 1374, 46 L. R, A. (N. S.) 624, and Cubbins v. Mississippi River Commission, 241 U. S. 351, 36 Sup. Ct. 671, 60 L. Ed. 1041.
The Arkansas court in McCoy v. Board of Directors, 95 Ark. 345, 129 S. W. 1097, 29 L. R, A. (N. S.) 396, announces and approves this doctrine, notwithstanding it had before it a constitutional provision identical with our section 17 of the Mississippi Constitution of 1890. Section 17, it is true, adds the right to recover .for property ‘ ‘ damaged ” for public use. Such right existed, however, prior to- the Constitution of 1890 under statute, but the right to recover damages for the diversion of Mississippi river vagrant flood waters was always denied. See Richardson Case, 68 Miss. 539, 9 So. 351, and Harkleroads Case, 62 Miss. 807, supra.
At all events, our judgment is that section 17, Constitution of '1890, does not contemplate damages resulting without legal injury, as in the case at bar. Section 238 [322]*322of the Constitution of 1890 merely provides what was already the law as announced in the Harhleroads Case, supra. This section, however, does indicate the policy of the state to be that damages are not recoverable on account of diverted flood waters. We do not see why the rule should apply only to riparian owners on the Mississippi river. Where the same conditions exist, similar reasoning would also apply to interior rivers with reference to the right to protect against vagrant flood waters. We think the same rule should and does apply to interior rivers, under the same conditions, in dealing with flood waters. The authorities from other states cited by appellees are not controlling in our state.
Coming now to the second question as to the right to obstruct the outlets or water courses connected with the river, we shall proceed at once to the point.
There is no complaint in this case about obstructing the water courses, and thereby diverting the natural and regular flow of the waters of these channels. But the evil complained of is the obstruction against the vagrant flood waters which would partly pass out upon the valley through these outlets. These water courses or outlets were inactive bayous, sloughs, and depressions which amounted to mere conduits! or passageways for foreign flood waters. They' were not natural running streams nor regular flowing water courses. It is true some of them contained waters of their own, but it ordinarily flowed in no direction. There was no regular and continuous current in these natural water courses. The levee did not interfere with the flow of their own waters, because they had no flow except that produced by the flood waters from the river. Therefore the levee obstructed only flood waters which at unusual times passed through these outlets or conduits. The principal function of the outlets was to assist in carrying off flood waters which had left the river channel and spread over the outlying lands. These flood waters would pass [323]*323partly through these outlets, hut the greater portion would spread over the land south and east for several miles, and then filially go hack into the river channel.
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Holden, J.,
delivered the opinion of the court.
The gist of the complaint of the landowners between the levee and the river and west of the river is: First, that the commissioners of the levee district have no right to levee against vagrant flood waters which have left the channel of Coldwater river and spread over the adjacent lands of the valley, thereby causing irreparable injury by diverting the water upon their lands; second, that if the levee commissioners have such right, then in exercising it they have no authority to obstruct the outlets or natural water courses connecting with the river through which its flood waters pass and spread generally over the lands of the valley, and eventually return to the channel many miles below.
The levee commissioners contend that they have both rights under the law; that the damming against flood waters is a right which includes obstructing outlets of the river. The commissioners claim, however, that [320]*320the second right has not been exercised here because the outlets are not connected with the river, are not proper water courses, and that the complainants are not riparian owners. These claims are relatively material, as will be seen later on, but we shall consider the two main questions involved while assuming* there is no merit ini the latter claims of the commissioners, so we may go directly and definitely to the two very important and decisive points in the case.
On the first proposition we think that when the flood waters left the channel of Coldwater river and spread for miles upon the lands in, the basin or adjacent valley, they are to be characterized as vagrant flood waters as distinguished from ordinary surface 'or rain waters, or regular running stream waters. ~*
The complaint of appellees is not against the obstruction of the latter kind of waters, but it is against the damming of the flood waters that left the river channel and spread indiscriminately for miles over the land in-the’ basin. A portion of these waters were wont to pass out further into the basin through outlets that were obstructed by the levee; therefore we shall now deal solely with vagrant flood waters, against which the levee Avas built for protection, and which resulted in damaging appellees by diverting them upon their lands.
The question then is, Did the leAUe commissioners haAre the legal right to protect the lands in the district by leveeing against these Avaicrs, and thus incidentally throAving them upon the oAvners outside of. the district? We think so.
Such diversion of vagrant flood waters, Adíen incident to and reasonably necessary, to the effective protection of the lands in the levee district, is Avithin the phrase “damrmm absque injuriaThe damages resulting are Avithout legal injury, and must be borne for the common good. The act causing the damage is done for protection against the common enemy — roaming flood [321]*321waters. It is similar in principle to the right to protect, from violence against an outlaw who runs amuck, even! though a neighbor is incidentally hurt ini the exercise of the right.
This doctrine has been approved by our courts before and since the adoption of our Constitution of 1890. We find it expressed in the cases of Board of Levee Commissioners v. Harkleroads, 62 Miss. 807; Richardson & May v. Levee Commissioners, 68 Miss. 539, 9 So. 351; Richardson v. Board of Levee Commissioners, 77 Miss. 518, 26 So. 963; Kansas, City, etc., Railroad Co. v. Smith, 72 Miss. 677, 17 So. 78, 27 L. R. A. 762, 48 Am. St. Rep. 579; Ham v. Levee Commissioners, 83 Miss. 534, 35 So. 943; Holman v. Richardson, 115 Miss. 169, 76 So. 136, L. R. ,A. 1917F, 942.
The principle is also announced and applied by the supreme court of the United States in the cases of Jackson v. United States, 230 U. S. 1; 33 Sup. Ct. 1011, 57 L. Ed. 1363; Hughes v. United States, 230 U. S. 24, 38 Sup. Ct. 1019, 57 L. Ed. 1374, 46 L. R, A. (N. S.) 624, and Cubbins v. Mississippi River Commission, 241 U. S. 351, 36 Sup. Ct. 671, 60 L. Ed. 1041.
The Arkansas court in McCoy v. Board of Directors, 95 Ark. 345, 129 S. W. 1097, 29 L. R, A. (N. S.) 396, announces and approves this doctrine, notwithstanding it had before it a constitutional provision identical with our section 17 of the Mississippi Constitution of 1890. Section 17, it is true, adds the right to recover .for property ‘ ‘ damaged ” for public use. Such right existed, however, prior to- the Constitution of 1890 under statute, but the right to recover damages for the diversion of Mississippi river vagrant flood waters was always denied. See Richardson Case, 68 Miss. 539, 9 So. 351, and Harkleroads Case, 62 Miss. 807, supra.
At all events, our judgment is that section 17, Constitution of '1890, does not contemplate damages resulting without legal injury, as in the case at bar. Section 238 [322]*322of the Constitution of 1890 merely provides what was already the law as announced in the Harhleroads Case, supra. This section, however, does indicate the policy of the state to be that damages are not recoverable on account of diverted flood waters. We do not see why the rule should apply only to riparian owners on the Mississippi river. Where the same conditions exist, similar reasoning would also apply to interior rivers with reference to the right to protect against vagrant flood waters. We think the same rule should and does apply to interior rivers, under the same conditions, in dealing with flood waters. The authorities from other states cited by appellees are not controlling in our state.
Coming now to the second question as to the right to obstruct the outlets or water courses connected with the river, we shall proceed at once to the point.
There is no complaint in this case about obstructing the water courses, and thereby diverting the natural and regular flow of the waters of these channels. But the evil complained of is the obstruction against the vagrant flood waters which would partly pass out upon the valley through these outlets. These water courses or outlets were inactive bayous, sloughs, and depressions which amounted to mere conduits! or passageways for foreign flood waters. They' were not natural running streams nor regular flowing water courses. It is true some of them contained waters of their own, but it ordinarily flowed in no direction. There was no regular and continuous current in these natural water courses. The levee did not interfere with the flow of their own waters, because they had no flow except that produced by the flood waters from the river. Therefore the levee obstructed only flood waters which at unusual times passed through these outlets or conduits. The principal function of the outlets was to assist in carrying off flood waters which had left the river channel and spread over the outlying lands. These flood waters would pass [323]*323partly through these outlets, hut the greater portion would spread over the land south and east for several miles, and then filially go hack into the river channel. These flood waters did not pursue these outlets and return directly to the river channel through them, hut they spread out for several miles over the lands and. into the bayous, sloughs, and depressions before returning to the river.
We think the levee commissioners had a right to build the levee across these outlets in order to protect against the flood waters. Such obstruction did not interfere with the natural flow of their own surface or rain water, nor the regular original channel water of these outlets. There was a canal, immediately west of the levee, which efficiently carried off all ordinary surface water. Unless a levee could be built across these depressions and bayous, it would be ineffective for the purpose intended, and protection against the flood waters would be thus denied appellants.
We do not intend to hold, nor to leave the impression, that there can be no recovery for obstructing and diverting the regular flow of natural running streams, or for collecting] and diverting surface or rain water to the injury of another. We say that, assuming the water courses in this case are natural water courses from a legal standpoint, still there is no complaint of obstruction of their own flowing waters, and no complaint of obstruction to any other waters of their own, but the case here is against obstructing and diverting vagrant flood waters; and we hold that the law authorized the obstruction of these waters. See cases of Jackson, Hughes, and Cubbins, supra. To illustrate: The channel of Coldwater river could not be obstructed, nor could any of its tributary streams be dammed if of such substantial importance as would result in diverting its own regular flow upon the lands of another. But such is not the case here.
[324]*324We find from the written opinion of the chancellor who tried this case that his decision in favor of the appellees was controlled, reluctantly, by the Cannon Case, 81 Miss. 334, 33 So. 81, and the Carrier Case, 103 Miss. 324, 60 So. 326. We think the chancellor construed these decisions too broadly, and gave them an effect beyond that which was. in the mind of the court at the time.
The chancellor expresses an opinion that the outlets are natural water courses, and for that reason the levee board had no authority to obstruct them by leveeing across them. This finding of fact will not be ignored; but let us see what the chancellor meant by holding that these outlets were natural water courses such as were involved in the Cannon and Carrier Cases, supra.
It is true these outlets were natural water courses as distinguished from artificial water courses, but they carried no regular running' streams, -with a current that carried their own waters in any direction, unless rain or surface waters. We do not understand that one can obstruct the current or flow of water that does not move in some direction. The most that can be said is that these outlets were mere conduits or passageways, with no regular flowing waters, except rain or surface waters, and passed those waters caused by unusual floods of the Coldwater river. Gullies and ditches which are ordinarily dry may be termed natural water courses whose own natural waters could not be obstructed and diverted to the injury of another, under the case of Ferris v. Wellborn, 64 Miss. 29, 8 So. 165, yet where they are obstructed solely to protect against vagrant flood waters which infrequently pass back out through them from another overflowed stream the rule is different.
The maxim, “Aqua eurrit et debet eurrere ut eurrere solebat,” as applied in the Cannon Case, supra, has no application to vagrant flood waters; ánd we do not [325]*325think the court had in mind flood waters when it decided the Cannon Case. The court seems to have held that Burr bayou, which was obstructed in that case, was a natural water course, but it also seems clear1 that the court considered that — “Burr bayou is a natural water course, making off from and flowing* out from the Tallahatchie river, in which the water flowed in a well-defined natural water course.”
It seems that Burr bayou was a running stream which if dammed up would result in injury to riparian owners because the regular flow of the stream would be obstructed and diverted upon the bordering owners. If this is a true interpretation of the facts in the mind of the court in that case, then it will be easily seen that the bayous and depressions that were obstructed in the case at bar were a different kind of natural water course, in that a different character of waters were obstructed ; therefore the rule there announced is not applicable in the case before us. If we have correctly interpreted the Cannon Case, then the Carrier Case is not in the way here, because that decision seems to have resulted from following the Cannon Case. We cannot bring ourselves to believe that the court in either of these oases, or in the Hughes Case, 27 So. 744, was attempting to deal with vagrant flood waters. The doctrine that no recovery can be had for diverting flood waters upon the land of riparian owners had been so long established in this state, and the United States .Supreme Court had so ably announced this rule, and the fact that this question had been so often discussed and decided with reference to the Mississippi river:— most of these discussions and. decisions being in view of the court when the Cannon and Carrier Cases were decided — leads us to say that the question of protecting against flood waters was not in the mind of the court when these decisions were rendered.
[326]*326In the Harkleroads Case, supra, which decision was rendered in 1885, this court said, in substance, that vagrant flood waters are a common enemy of the public, and that no compensation could be allowed to riparian owners who were damaged on account of such waters being thrown upon them by the levee, and that damages were not recoverable for the closing of natural outlets connected with the river, thus recognizing the doctrine of dammrni atysque injuria.
The Richardson Case, 68 Miss. 539, 9 So. 351, was decided in 1801 after the adoption of the Constitution of 1890, and announces the rule that damages are not recoverable on account of diverting water upon riparian owners by levee obstruction. This case holds that such damages are occasioned by unavoidable consequences of the situation and the authorized effort to promote the general good, and are to be borne by the damaged partv.
The Smith Case, 72 Miss. 677, 17 So, 78, 27 L. R. A. 762, 48 Am. St. Rep. 579, establishes the righF to protect against flood waters as distinguished from the waters of a stream, thus recognizing the rule giving the right to levee against such waters after they have left the channel of the stream and become a common enemy. This decision was rendered in 1895. See Ham v. Levee Commissioners, 80 Miss. 534, 35 So. 943; Holman v. Richardson, 115 Miss. 169, 76 So. 136, L. R. A. 1917F, 942; Richardson Case, 77 Miss. 518, 26 So. 963
The supreme court of the United States has several times followed this principle as annoucned by our supreme court. We will not quote or discuss these federal decisions, but shall cite them and respectfully recommend their careful perusal. We think these decisions announce sound and logical conclusions, and would be worthy of following even though our court had not already announced the same principle. See the Jackson Case, 230 U. S. 1, 33 Sup. Ct. 1011, 57 L. Ed. 1363; Hughes Case, 230 U. S. 24, 33 Sup. Ct. 1019, 57 L. Ed. [327]*3271374, 46 L. R. A. (N. S.) 624, and Cubbins Case, 241 U. S. 351, 36 Sup. Ct. 671, 60 L. Ed. 1041.
The decisions of our court, cited by appellees to sustain their view with reference to' obstructing natural water courses, are cases where the waters obstructed and diverted were not vagrant flood waters, but were the natural running waters of the water courses that were obstructed. In some .of thetee cases it appears that it was the obstruction of their own flowing or running-stream waters, and in others it was surface or pain waters collected and wrongfully diverted upon another. None of these decisions cited deal with vagrant flood waters that infrequently come and pass from another overflowed stream through the outlet which serves as a conduit to spread the waters upon the adjacent lands of the basin.
The Cannon and Carrier Cases, supra, come nearest to being- in point for appellees, but we have discussed these cases in the light that they were not dealing -with the question of defending against vagrant flood waters.
The decisions of other state courts on these questions are very much in conflict, and we deem it unnecessary to discuss them, because our own court., backed up by the United States supreme court, has already settled the questions in our state. However, a recent- decision by the supreme court of Arkansas in the McCoy Case, 95 Ark. 345. 129 S. W. 1097, 29 L. R. A. (N. S.) 396, is so identical with the case before us that we refer to it as a sound authority upon which to rest.
There is another case, from California, styled Lamb v. Reclamation District, 73 Cal. 125, 14 Pac. 625, 2 Am. St. Rep. 775, which is so clear and logical in its reasoning* we desire to specially cite it for careful perusal. We cannot refrain from quoting a short excerpt from the opinion as follows:
“Wilkins slough is not a channel or fork, continuously carrying a large part, or any part, of the waters of the [328]*328Sacramento' river. It carries no water at all except ‘in times of flood,’ and then the amount which it carries, when compared with the volume of water in the river, is insignificant. In fact, it has no original water of its own at all, but is simply a conduit by vfhich occasionally1 some of the flood waters of the river escape into the lower lands adjoining. This same office is performed by every other low place along* the bank; and every other part of the levee could be removed as a nuisance if that part of it which is at Wilkins slough can be so removed.”
We think the lower court erred in overruling the motion to dissolve the injunction, and for such error the decree is reversed, and decree will be entered here for the appellants.
Reversed, and decree entered here for the appellants.
Ethridge and Cook, JJ., dissent.