I.
Hall, J.
The defendant contends that the petition does not state a cause of action, and that the facts of this case as stated by us do not constitute a cause of action. Eliminate from the petition all the averments concerning the ownership by defendant .of plaintiff’s house and the adjacent lot, and concerning the relation of tenant and landlord existing between plaintiff and defendant, as surplusage, as we have eliminated the [267]*267evidence in support of those averments from our statement of the facts of this case, and let us consider this case, as to the petition and the facts, as if the petition did not contain such averments, and as if there had been no evidence in support thereof. In so doing we shall but yield to defendant’s contention, which is that the petition does not allege and the evidence did not tend to show that the plaintiff was the defendant’s tenant.
Now, then, with the elimination made, does the petition state a cause of action % Do the facts of this-case constitute a cause of action in favor of plaintiff %
The most favorable view, to the defendant, to take-of this case, is that it rests upon the principle of law applicable to surface water. We shall determine this case, then, with reference wholly to that principle.
We find that there was no negligence in the digging of the cellar. There was no negligence committed by defendant or any one else by reason of which the surface water ran into the cellar. The defendant had the cellar, dug as he had the right to do. After having done so, without fault on his part, the surface water ran into the cellar, partially filling it. Had the defendant the right to empty the water, thus collected in the cellar, by means-of the tunnel into the plaintiff ’ s house % Substantially this very question was decided by the supreme court of this state in the case of McCormick v. R. R. (57 Mo. 433), in the negative. In that case, Judge Tories delivering the opinion, it was said, after first having stated the general rule of the common law: “Inthe present case the-plaintiff complains that the defendant had so constructed its road that the embankment made therefor had collected a large body of surface and overflowed water on the-east side of the road bed where the same adjoined the land of the plaintiff; and that after said water had been so collected in a large body or pond, the defendant negligently and maliciously cut an artificial channel from said body of water through the embankment of its road bed, and drained all of said large body of water onto-plaintiff’s land, by which plaintiff was damaged, etc.
[268]*268“The first instruction asked by plaintiff told the jury in effect, that if the defendant did this act charged in the petition, the plaintiff had a right to recover. We think this instruction ought to have been given. While the defendant had a right to drain the surface water from its road bed, so as to protect the same for continued and profitable use, it should have been done in a reasonable manner with reference to the rights of others. * * * The jury are told by the first instruction given by the ■court at the instance of the defendant, that the act of the defendant in making the culvert and turning the hody of water on the land of the plaintiff must have been done by the defendant maliciously and for the sole purpose of maliciously injuring plaintiff, in order to a recovery on the part of plaintiff. I cannot see upon what principle the doctrine contained in this instruction can be upheld. If the act was unlawful and negligent, or reckless, it certainly makes no difference whether it was maliciously done, or what object the defendant had in view, except as to the amount of damages.” *
Upon a subsequent appeal of that case to the supreme court, by that court, Nap ton, J., delivering the opinion, the former opinion by Judge Tories was extended so as to declare in force in this state the doctrine of the civil law with reference to surface water. From Judge Nap ton’s opinion, Judge Hough dissented, holding and maintaining in his dissenting opinion, that the doctrine ■of the common law upon that subject was in full force in this state. McCormick r. R. R., 70 Mo. 360. In his dissenting opinion Judge Hough declared in favor of the correctness of the views of Judge Tories, expressed in the abstract of his opinion copied, herein, as being in accordance with the common law doctrine. In the subsequent case of Shane v. R. R. Co. (71 Mo. 237), the supreme court, by Napton, J., reaffirmed the doctrine of the civil law upon the subject. From that opinion Judge Hough dissented and delivered a separate opinion. In his opinion Judge Hough said: “I adhere to the opinion of this court in McCormick v. R. R. Co. (57 Mo. 433), the [269]*269doctrine of which I conceive to be at variance with the rule adopted by my associates in this case.” In the case of Abbott v. R. R. (83 Mo. 271), the supreme court has overruled the opinions by Judge Napton, and has declared that the doctrine of the common law upon this subject is the correct doctrine and is in force in this state. In this latter case the supreme court expressly overruled the case of McCormick v. R. R. Co. (70 Mo. 360), and held that the judgment in that case should have been affirmed instead of having been reversed; and also expressly declared against the doctrine of the civil law announced in the case of Shane v. R. R. Co., supra, and stated that the judgment in the latter case might have been correct, on account of the facts of the case, in accordance with the common law doctrine. A careful study of the opinion in the Abbott case has left no doubt in our minds as to the intention of the supreme court not to overrule the opinion of Judge Tories in the case of McCormick v. R. R. Co. (57 Mo. 433). The supreme court in the Abbott case expressly overruled all that it intended to overrule. And besides Judge Hough con curred in the opinion in the Abbott case in the following language: “I adhere to the views expressed by me in my dissenting opinion in the case of Shane v. The Kansas City, St. Joseph & Council Bluffs Railroad Co. (71 Mo. 253), which, I think, are approved by the foregoing opinion,” showing very clearly that he did not understand Judge Tories’ opinion to be at all shaken or impaired by the opinion of the court in which he thus concurred. For it will be remembered that in his dissenting opinion in the Shane case, he said: “ I adhere to the opinion of this court in McCormick v. R. R. Co. (57 Mo. 433), etc.” We are all of the opinion that the principle enunciated by Judge Tories remains the law in this state, supported as it is by reason and justice, unaffected and unchanged by subsequent decisions of our supreme court.
Surface water is a common enemy, under the com-[270]*270moil law doctrine, which each land owner may fight and ■drive from his land. But a land owner may not dig a cellar, and, after the surface water has partially filled the cellar, discharge the water thus collected, into the .adjoining house of another by means of an open tunnel dug from the cellar to the adjoining house. Of the correctness of this proposition, under Judge Tories’ opinion, there can be no doubt.
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I.
Hall, J.
The defendant contends that the petition does not state a cause of action, and that the facts of this case as stated by us do not constitute a cause of action. Eliminate from the petition all the averments concerning the ownership by defendant .of plaintiff’s house and the adjacent lot, and concerning the relation of tenant and landlord existing between plaintiff and defendant, as surplusage, as we have eliminated the [267]*267evidence in support of those averments from our statement of the facts of this case, and let us consider this case, as to the petition and the facts, as if the petition did not contain such averments, and as if there had been no evidence in support thereof. In so doing we shall but yield to defendant’s contention, which is that the petition does not allege and the evidence did not tend to show that the plaintiff was the defendant’s tenant.
Now, then, with the elimination made, does the petition state a cause of action % Do the facts of this-case constitute a cause of action in favor of plaintiff %
The most favorable view, to the defendant, to take-of this case, is that it rests upon the principle of law applicable to surface water. We shall determine this case, then, with reference wholly to that principle.
We find that there was no negligence in the digging of the cellar. There was no negligence committed by defendant or any one else by reason of which the surface water ran into the cellar. The defendant had the cellar, dug as he had the right to do. After having done so, without fault on his part, the surface water ran into the cellar, partially filling it. Had the defendant the right to empty the water, thus collected in the cellar, by means-of the tunnel into the plaintiff ’ s house % Substantially this very question was decided by the supreme court of this state in the case of McCormick v. R. R. (57 Mo. 433), in the negative. In that case, Judge Tories delivering the opinion, it was said, after first having stated the general rule of the common law: “Inthe present case the-plaintiff complains that the defendant had so constructed its road that the embankment made therefor had collected a large body of surface and overflowed water on the-east side of the road bed where the same adjoined the land of the plaintiff; and that after said water had been so collected in a large body or pond, the defendant negligently and maliciously cut an artificial channel from said body of water through the embankment of its road bed, and drained all of said large body of water onto-plaintiff’s land, by which plaintiff was damaged, etc.
[268]*268“The first instruction asked by plaintiff told the jury in effect, that if the defendant did this act charged in the petition, the plaintiff had a right to recover. We think this instruction ought to have been given. While the defendant had a right to drain the surface water from its road bed, so as to protect the same for continued and profitable use, it should have been done in a reasonable manner with reference to the rights of others. * * * The jury are told by the first instruction given by the ■court at the instance of the defendant, that the act of the defendant in making the culvert and turning the hody of water on the land of the plaintiff must have been done by the defendant maliciously and for the sole purpose of maliciously injuring plaintiff, in order to a recovery on the part of plaintiff. I cannot see upon what principle the doctrine contained in this instruction can be upheld. If the act was unlawful and negligent, or reckless, it certainly makes no difference whether it was maliciously done, or what object the defendant had in view, except as to the amount of damages.” *
Upon a subsequent appeal of that case to the supreme court, by that court, Nap ton, J., delivering the opinion, the former opinion by Judge Tories was extended so as to declare in force in this state the doctrine of the civil law with reference to surface water. From Judge Nap ton’s opinion, Judge Hough dissented, holding and maintaining in his dissenting opinion, that the doctrine ■of the common law upon that subject was in full force in this state. McCormick r. R. R., 70 Mo. 360. In his dissenting opinion Judge Hough declared in favor of the correctness of the views of Judge Tories, expressed in the abstract of his opinion copied, herein, as being in accordance with the common law doctrine. In the subsequent case of Shane v. R. R. Co. (71 Mo. 237), the supreme court, by Napton, J., reaffirmed the doctrine of the civil law upon the subject. From that opinion Judge Hough dissented and delivered a separate opinion. In his opinion Judge Hough said: “I adhere to the opinion of this court in McCormick v. R. R. Co. (57 Mo. 433), the [269]*269doctrine of which I conceive to be at variance with the rule adopted by my associates in this case.” In the case of Abbott v. R. R. (83 Mo. 271), the supreme court has overruled the opinions by Judge Napton, and has declared that the doctrine of the common law upon this subject is the correct doctrine and is in force in this state. In this latter case the supreme court expressly overruled the case of McCormick v. R. R. Co. (70 Mo. 360), and held that the judgment in that case should have been affirmed instead of having been reversed; and also expressly declared against the doctrine of the civil law announced in the case of Shane v. R. R. Co., supra, and stated that the judgment in the latter case might have been correct, on account of the facts of the case, in accordance with the common law doctrine. A careful study of the opinion in the Abbott case has left no doubt in our minds as to the intention of the supreme court not to overrule the opinion of Judge Tories in the case of McCormick v. R. R. Co. (57 Mo. 433). The supreme court in the Abbott case expressly overruled all that it intended to overrule. And besides Judge Hough con curred in the opinion in the Abbott case in the following language: “I adhere to the views expressed by me in my dissenting opinion in the case of Shane v. The Kansas City, St. Joseph & Council Bluffs Railroad Co. (71 Mo. 253), which, I think, are approved by the foregoing opinion,” showing very clearly that he did not understand Judge Tories’ opinion to be at all shaken or impaired by the opinion of the court in which he thus concurred. For it will be remembered that in his dissenting opinion in the Shane case, he said: “ I adhere to the opinion of this court in McCormick v. R. R. Co. (57 Mo. 433), etc.” We are all of the opinion that the principle enunciated by Judge Tories remains the law in this state, supported as it is by reason and justice, unaffected and unchanged by subsequent decisions of our supreme court.
Surface water is a common enemy, under the com-[270]*270moil law doctrine, which each land owner may fight and ■drive from his land. But a land owner may not dig a cellar, and, after the surface water has partially filled the cellar, discharge the water thus collected, into the .adjoining house of another by means of an open tunnel dug from the cellar to the adjoining house. Of the correctness of this proposition, under Judge Tories’ opinion, there can be no doubt. If the defendant, as alleged in the petition and as the evidence tended to .show, had the tunnel dug from the cellar to the plaintiff ’s adjoining house, and then had the tunnel filled with loose dirt so that the water from the cellar percolated through the loose dirt into plaintiff’s house, the defendant was negligent, and was just as liable as he would have been if he had not had the tunnel filled at all. If it was the duty of the defendant to.fill the tunnel it was his duty to properly do so. If the defendant would have been liable had the tunnel not been filled at all, he was liable if the tunnel was negligently filled.
We hold that under the facts alleged in the petition, to prove which the evidence tended, the defendant was liable under the doctrine of the common law as to surface water. The fact that the defendant was the agent of Malvina Blanchard in the digging and the filling of the tunnel does not alter the case, or affect his liability. Plis act was not a mere non-feasance; His act was a misfeasance. For a misfeasance, done by an agent in the line of his agency, both the principal and agent are liable. Harriman et al. v. Stove. 57 Mo. 99; Lottman v. Barnett, 62 Mo. 168; Bell v. Josselyn, 3 Gray 309.
Whether the defendant was, or was not, the plaintiff ’ s landlord, it matters not. If he was such landlord his act ■ was wrongful. If he was not such landlord, but was a stranger, his act was still wrongful.
By the petition the plaintiff’s cause of action is based upon the negligent filling of the tunnel. The evidence tended to establish the alleged negligence. Upon said negligence the plaintiff’s right to recover was predicated in the instructions given by the court to the jury. [271]*271The jury found thatthe defendant was guilty ©f said negligence. The plaintiff’s instructions erroneously confined his right to a recovery to the fact that the defendant was plaintiff’s landlord, or was estopped from denying that he was such landlord. This was an error against plaintiff. By the error defendant was not injured. On account of that error we shall not, therefore, disturb the judgment. The instructions, asked by defendant, which were refused by the court, were properly refused as being contrary either to the law or the facts of this case as stated by ns in this opinion.
II.
It is difficult to see the importance or relevancy of the testimony of plaintiff introduced against the defendant’s •objection. But if the evidence had any tendency it was to establish the fact that the defendant was in charge of the digging and filling of the tunnel in which work he was charged with negligence. That the defendant was in charge of the filling ©f the tunnel the evidence introduced by defendant tended to show. The testimony was perhaps irrelevant, but we cannot perceive in what way the defendant could have been prejudiced by it.
The judgment is affirmed.