[214]*214The opinion of the court ivas delivered by
Johnston, J. :
In his petition Keys averred that, ever since the settlement of the section of the country in which the farm is situate, there has been a distinct natural water-course running in an easterly and north - easterly direction through his land, which conducted large quantities of water from the hills lying west and northwest of his land, and that prior to the building of the railroad the water passed freely and unobstruct-edly eastwardly from plaintiff’s land along the watercourse, but since the building of the railroad, and owing to the incomplete, inadequate and improperly-located openings for the passage of water coming down the natural water-course across the right-of-way of the railway company, and beneath its tracks, the water had accumulated and remained in great quantities over the plaintiff’s land, damaging and destroying his crops, for which he asked judgment in the sum of $3,999.
[215]*215
1’ Zai?éraionse SS““
[217]*2172‘ watra'e" enemy?011 [214]*214It appears that the plaintiff’s land is situated in section 31, while the railroad is constructed on section 32. Between sections 31 and 32 there is a highway, and immediately east and running parallel with the highway the railroad was constructed. The watercourse, which came from the hills on the west, was known as “Grow creek ; ” and, while there was some controversy as to the character of the stream, the testimony is sufficient to show that it should be treated and regarded as a natural water-course. The creek formerly meandered through Keys’s farm in an easterly and northeasterly direction, being somewhat crooked, and flowed out across the section-line into section 32, until it found its outlet in the Verdigris river. For the purpose of straightening the course of the creek [215]*215through his- premises, Keys dug a large ditch directly east through the center of his land, which carried the water into the highway, and from that point he dug two ditches in a southerly direction along the highway until they reached tbp original channel of the creelc. After this new channel was made, the original channel of the creek through plaintiff’s premises, and which passed across the highway and under the point where the railroad was built, was completely filled up and water no longer flowed there. This was the situation when the railroad was built. It was constructed parallel with the ditches that were dug in the highway, and not across the artificial channel which was dug through Keys’s premises. Some claim is made by the railway company that the artificial channel through Keys’s land is not to be treated as a ■water-course, and that the obstruction of the same would give no right of action for the resulting injury. It appears that the ditch was dug not merely for the drainage of the land but as a channel for the flow of the water of a natural water-course. It had remained open and had been treated as a water-course for a number of years before the construction of the railroad, and therefore is to be' governed by the same rules as other water-courses. Keys, as the owner of the land, had a right to change the channel and divei’^ water of Crow creek, provided he returned the water to the same channel before it reached.the land of the proprietor below. It appears, however, that Keys did not return the water to the channel of Crow creek upon his own land, but carried it out into the highway and conducted it down the highway in ditches to the original channel. It is true, as contended, that he has no right to divert the water of the stream from its channel and precipitate it in a body upon the adjoining land to the [216]*216injury of the owner. The proprietor of the adjoining land would have the right to erect an embankment across the course of the water and thus keep it off Ms land, and the party who had wrongfully diverted the water of the stream could not complain if the embankment thus made would have the effect of turning the water back upon his own land. No complaint, however, is made by the public authorities in charge of the highway by reason of the diversion of the stream and the discharge of the water into the highway ; and if the ditches dug were reasonably sufficient for the purpose, and there has been acquiesence and consent to such diversion by the public authorities, the railway company cannot complain for them nor derive any advantage from the change of the channel in the lands above its right-of-way. The turning of the stream from its original channel gave the railroad company no right to interrupt or obstruct the new channel, and if it was interrupted or obstructed to the injury of an upper landowner, he is entitled to recover for any damages he may suffer in consequence of such obstruction. The railroad, however, was not built across the ditch upon Keys’s land, nor does it appeal* from the findings of the court that it was built across the ditches constructed by him in the public highway. As we have seen, the highway lay between Keys’s land and the right-of-way of the railroad company, and we do not understand that the ditches or water-course were crossed or changed by the company in the building of its road. The case appears to have been decided upon the theory that it was the duty of the railroad company to make an opening through its embankment to carry off the water which might overflow the ditches which Keys had constructed, and because it failed to make an opening which would discharge the overflow in a [217]*217body upon the land below, tlie company was held liable. Tlie court found that in time of high water, before the construction of the railroad, when there was an overflow of the stream, it flowed over the public highway, through openings under the highway, and made its escape into the original channel, and thence into the Verdigris river. The court finds, as the cause for the injury, and as a basis for the recovery which was allowed, that “the railroad grade of defendant’s railroad along the east side of plaintiff’s premises is about three or four feet high, and in times of heavy rains it dams up the mouth of plaintiff’s ditch where it emerges from his premises, fills it with mud and sediment, and the accumulated water backs up from the railroad grade and overflows nearly all of plaintiff’s premises and destroys his growing crops.” As we have seen, the railroad was not constructed over the ditch which emerges from plaintiff’s' premises, nor did that ditch reach the right-of-way of the railroad upon which its grade was constructed. There was no duty resting on the railroad company or any proprietor of the lower land to provide an outlet for the overflow of Crow creek or of the ditches into which it was turned. In changing the channel of the creek it was the duty of Keys to make the new channel sufficient not only for the ordinary flow of water in the stream, but also for such as might be reasonably expected to occur. The overflow of the stream where it emerged from Keys’s land, and which spread out over the highway and crossed the land upon which the railroad was built, was not confined to any channel, and had none of the characteristics of a water-course. Tt was practically surface-water, which is regarded as an outlaw, against which any landowner affected may fight.
[218]
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[214]*214The opinion of the court ivas delivered by
Johnston, J. :
In his petition Keys averred that, ever since the settlement of the section of the country in which the farm is situate, there has been a distinct natural water-course running in an easterly and north - easterly direction through his land, which conducted large quantities of water from the hills lying west and northwest of his land, and that prior to the building of the railroad the water passed freely and unobstruct-edly eastwardly from plaintiff’s land along the watercourse, but since the building of the railroad, and owing to the incomplete, inadequate and improperly-located openings for the passage of water coming down the natural water-course across the right-of-way of the railway company, and beneath its tracks, the water had accumulated and remained in great quantities over the plaintiff’s land, damaging and destroying his crops, for which he asked judgment in the sum of $3,999.
[215]*215
1’ Zai?éraionse SS““
[217]*2172‘ watra'e" enemy?011 [214]*214It appears that the plaintiff’s land is situated in section 31, while the railroad is constructed on section 32. Between sections 31 and 32 there is a highway, and immediately east and running parallel with the highway the railroad was constructed. The watercourse, which came from the hills on the west, was known as “Grow creek ; ” and, while there was some controversy as to the character of the stream, the testimony is sufficient to show that it should be treated and regarded as a natural water-course. The creek formerly meandered through Keys’s farm in an easterly and northeasterly direction, being somewhat crooked, and flowed out across the section-line into section 32, until it found its outlet in the Verdigris river. For the purpose of straightening the course of the creek [215]*215through his- premises, Keys dug a large ditch directly east through the center of his land, which carried the water into the highway, and from that point he dug two ditches in a southerly direction along the highway until they reached tbp original channel of the creelc. After this new channel was made, the original channel of the creek through plaintiff’s premises, and which passed across the highway and under the point where the railroad was built, was completely filled up and water no longer flowed there. This was the situation when the railroad was built. It was constructed parallel with the ditches that were dug in the highway, and not across the artificial channel which was dug through Keys’s premises. Some claim is made by the railway company that the artificial channel through Keys’s land is not to be treated as a ■water-course, and that the obstruction of the same would give no right of action for the resulting injury. It appears that the ditch was dug not merely for the drainage of the land but as a channel for the flow of the water of a natural water-course. It had remained open and had been treated as a water-course for a number of years before the construction of the railroad, and therefore is to be' governed by the same rules as other water-courses. Keys, as the owner of the land, had a right to change the channel and divei’^ water of Crow creek, provided he returned the water to the same channel before it reached.the land of the proprietor below. It appears, however, that Keys did not return the water to the channel of Crow creek upon his own land, but carried it out into the highway and conducted it down the highway in ditches to the original channel. It is true, as contended, that he has no right to divert the water of the stream from its channel and precipitate it in a body upon the adjoining land to the [216]*216injury of the owner. The proprietor of the adjoining land would have the right to erect an embankment across the course of the water and thus keep it off Ms land, and the party who had wrongfully diverted the water of the stream could not complain if the embankment thus made would have the effect of turning the water back upon his own land. No complaint, however, is made by the public authorities in charge of the highway by reason of the diversion of the stream and the discharge of the water into the highway ; and if the ditches dug were reasonably sufficient for the purpose, and there has been acquiesence and consent to such diversion by the public authorities, the railway company cannot complain for them nor derive any advantage from the change of the channel in the lands above its right-of-way. The turning of the stream from its original channel gave the railroad company no right to interrupt or obstruct the new channel, and if it was interrupted or obstructed to the injury of an upper landowner, he is entitled to recover for any damages he may suffer in consequence of such obstruction. The railroad, however, was not built across the ditch upon Keys’s land, nor does it appeal* from the findings of the court that it was built across the ditches constructed by him in the public highway. As we have seen, the highway lay between Keys’s land and the right-of-way of the railroad company, and we do not understand that the ditches or water-course were crossed or changed by the company in the building of its road. The case appears to have been decided upon the theory that it was the duty of the railroad company to make an opening through its embankment to carry off the water which might overflow the ditches which Keys had constructed, and because it failed to make an opening which would discharge the overflow in a [217]*217body upon the land below, tlie company was held liable. Tlie court found that in time of high water, before the construction of the railroad, when there was an overflow of the stream, it flowed over the public highway, through openings under the highway, and made its escape into the original channel, and thence into the Verdigris river. The court finds, as the cause for the injury, and as a basis for the recovery which was allowed, that “the railroad grade of defendant’s railroad along the east side of plaintiff’s premises is about three or four feet high, and in times of heavy rains it dams up the mouth of plaintiff’s ditch where it emerges from his premises, fills it with mud and sediment, and the accumulated water backs up from the railroad grade and overflows nearly all of plaintiff’s premises and destroys his growing crops.” As we have seen, the railroad was not constructed over the ditch which emerges from plaintiff’s' premises, nor did that ditch reach the right-of-way of the railroad upon which its grade was constructed. There was no duty resting on the railroad company or any proprietor of the lower land to provide an outlet for the overflow of Crow creek or of the ditches into which it was turned. In changing the channel of the creek it was the duty of Keys to make the new channel sufficient not only for the ordinary flow of water in the stream, but also for such as might be reasonably expected to occur. The overflow of the stream where it emerged from Keys’s land, and which spread out over the highway and crossed the land upon which the railroad was built, was not confined to any channel, and had none of the characteristics of a water-course. Tt was practically surface-water, which is regarded as an outlaw, against which any landowner affected may fight.
[218]*218“The simple fact that the owner of one tract of land raises an embankment upon it which prevents the surface-water falling and running upon the land of an adjoining owner from running off said land, and causes it to accumulate thereon to its damage', gives to the latter no cause of action against the former ; nor is the rule changed by the fact that the former is a railroad corporation, and its embankment is raised for the purpose of a railroad track, nor by the fact that a culvert could have been made under said embankment sufficient to have afforded an outlet for all such surface-water.” (Railroad Co. v. Hammer, 22 Kas. 763. See, also, Railroad Co. v. Steck, 51 Kas. 737 ; Railroad Co. v. Renfro, 52 id. 237.) •
3' surface-water. While a landowner cannot obstruct a water-course, or divert a stream of water so as to cause inj ury to another, without being responsible therefor, it is well settled under the common law which prevails in this state that an owner has the right to obstruct and hinder the flow of mere surface-water upon his land from the land of other proprietors, and he can even turn the same back upon the land of his neighbor without incurring liability for injuries caused by such obstruction. Under this rule, Keys had no right to liavé the surface-water flow aci'oss the right-of-way of the railroad company, but on the contrary it had a right to protect itself by building an embankment without openings or waterways in order to prevent the water crossing its right-of-way, and any injury caused thereby is damnum absque injuria. (Pettigrew v. Evansville, 25 Wis. 236; Hoyt v. City of Hudson, 27 id. 656; O’Connor v. Railway Co., 52 id. 526; Turner v. Dartmough, 13 Allen, 291; Bowlsby v. Speer, 2 Vroom. 351; Swett v. Cutts, 50 N. H. 439 ; Preston v. Hull, 42 N. W. Rep. [Iowa] 305 ; Morris v. Council Bluffs, 67 Iowa, 343 ; McCormick v. Railroad Co., 57 Mo. 433 ; Abbott v. Railway Co., 83 [219]*219id. 271; Jones v. Railroad Co., 34 id. 151; Schneider v. Railway Co., 29 Mo. App. 68; 24 Am. & Eng. Encyc. of Law, 903.)
As the recovery of the plaintiff below was largely based upon the failure of the railway company to provide openings for the flow of surplus water, it cannot be sustained.
The judgment of the district court will be reversed, and the cause remanded for another trial.
Allen, J., concurring.
Horton, C. J., not sitting.