In establishing the ditch, the state for convenience delegated to the county a part of its sovereign power. When that had been exercised, the specifications determined, and the cost levied against the benefited property, the drainage rights of the owners of the *Page 394 property so benefited became as well established, according to the ditch specifications, as if nature, when it shaped the terrain, had provided such drainage. Those rights could no more be infringed with impunity than could they be interfered with if nature had established them. The county, in both its sovereign and corporate capacities, was as firmly bound to respect the drainage rights of the landowners in the one case as in the other. It could not damage plaintiff's property by damming up water without acquiring the right to do so. Schussler v. Board of Commrs. 67 Minn. 412, 70 N.W. 6,39 L.R.A. 75, 64 A.S.R. 424. This liability and the effect thereon of Minn. Const. art. 1, § 13, as amended, is fully discussed in Austin v. Village of Tonka Bay, 130 Minn. 359,365, 153 N.W. 738, 740. Where, as here, property was damaged by the county's departure from the bridge specifications confirmed in the ditch proceedings, that damage fell entirely outside the scope of the proceeding and was not done by the county in its sovereign capacity in the establishment of the ditch. The ditch, as established and assessed for, became the basis of plaintiff's rights, including the right to the free flow of water at the level fixed in the proceedings. Any interference with such flow constituted an invasion of plaintiff's rights if it dammed up his drainage.
When the ditch had been established, the county no longer functioned in its sovereign capacity, but approached the problem of building a bridge across the ditch in its capacity of road and bridge builder, and the rules of liability, as applied to counties acting in that capacity, applied. It even received the cost of construction, necessitated by such establishment, in its corporate capacity as distinguished from the sovereign functions delegated to it by the state. It might or might not expend the entire sum appraised to it as damages, but it was bound to build to the ditch specifications as confirmed. The situation would be plainer, but, as I see it, no different as to liability, if the ditch had been established before the road was laid out. Then, it would be obvious that, when bridging the ditch, the county was engaged in the same capacity and as clearly within the scope of its powers and subject to the same rule *Page 395 of liability as it would be in building any other bridge. The applicability of the rule of liability in Lindstrom v. County of Ramsey, 136 Minn. 46, 49, 161 N.W. 222, 223, would be clear. This court there said:
"It is clear that the work of widening, straightening and raising the grade at the place in question was done in the course and as a means of improving the highway under the contract, and that it was within the general scope of the powers of the county, and within the authority of the county board; therefore the placing of the material, as in this case, in the roadway where it would, without any further act on the part of anyone, fill and obstruct the culvert in question and thereby cause the overflow of the plaintiff's land, is an act for which the defendant is liable.
"In the matter of the improvement of highways, the acts of the town board in case of town roads, and of county boards in case of county roads, within the general scope of the powers and duties of such boards, are the acts of the municipality, so that if such acts result in damages to adjacent lands, for which a private owner would be liable if caused by acts done by him on his own land, such municipality would be liable. Peters v. Town of Fergus Falls, 35 Minn. 549, 29 N.W. 586; Schussler v. Board of Co. [sic] Commrs. of Hennepin County, 67 Minn. 412,70 N.W. 6, 39 L.R.A. 75, 64 Am. St. 424; Gunnerus v. Town of Spring Prairie, 91 Minn. 473, 98 N.W. 340, 974."
The cases cited by the court there in support of its views are squarely in point.
There is no question of ultra vires here involved. The county's duty to build the bridge if the highway was not vacated was clear; and, if it built the bridge, it should have conformed to the ditch requirements. In building it otherwise and in such manner as to dam the ditch water back onto plaintiff's land, it was as much an intermeddler as was the township of Spruce in Olson v. County of Roseau, 164 Minn. 452,205 N.W. 372, where the county had nothing to do with the obstruction. *Page 396
In Erickson v. County of Stearns, 190 Minn. 433,252 N.W. 219, the dam complained of was erected by the county officers wholly without even apparent authority in the county. (They raised the level of a navigable lake which was largely in Todd county.) In Schussler v. Board of Commrs. 67 Minn. 412,70 N.W. 6, 39 L.R.A. 75, 64 A.S.R. 424, the county was held liable for erecting a dam which impaired lower water rights. It could not do so even with legislative authority without acquiring the right by condemnation or otherwise.
Whether the demurrer should be sustained depends, as say the majority, on whether on any theory the complaint states a case. As I see it, it states a case for relief from a continued nuisance. It alleges, in substance, that the county, in constructing the bridge, erected and still maintains a dam three feet in height across the ditch as established. Whether the prayer requests the appropriate relief is beside the point. It is no part of the statement of the cause of action. 1 Pirsig's Dunnell, Minn. Pleading, § 123.
I think there should be a reversal.