It is contended by plaintiff in error that the evidence was insufficient to entitle the plaintiff below, the defendant in error here, to recover, for the reason that he did not show the existence of a "water course" or "waterway." The defendant below moved the court to instruct the jury to return a verdict in its favor. However, the motion was never acted upon, nor was there any exception reserved, either on account of the failure of the court to act or to sustain the same.
In defendant's motion for a new trial he alleges that the verdict was contrary to law, and not supported by sufficient evidence. The question, then, arises, when is a verdict contrary to law?
"Where the evidence on the trial establishes the fact so clearly and indisputably that the court may instruct the jury to bring in a particular verdict, but neglects to do so, and is not requested so to do, and the jury returns a verdict contrary to what the law directs in such a state of facts, then and then only can the court set aside the verdict of the jury." (Marshall's Kans. Trial Brief, p. 607, § 3080).
By this record the question is presented as to whether or not the obstruction of the servitude of the lower heritage to the injury of the owner of the dominant estate, subjects him to liability for the resulting damage. Some of the adjudicated cases seem to go to the full extent of the civil-law doctrine of the servitude of the lower tenement, holding that the superior or dominant tenement has the absolute right to the discharge of its surface waters on the lower, under all or any circumstances in the nature of a common easement. Martin v.Riddle, 26 Pa. 415; Miller v. Laubach, 47 Pa. 155, 86 Am. Dec. 521; Ogburn v. Connor, 46 Cal. 347, 13 Am. Rep. 213; Kauffmanv. Griesemer, 26 Pa. 407, 67 Am. Dec. 437, *Page 111 Earl v. Dehart, 12 N.J. Eq. 280, 72 Am. Dec. 395; Martin v.Jett, 12 La. 501, 32 Am. Dec. 120; Butler v. Peck, 16 Ohio St. 339, 88 Am. Dec. 452; Mayor v. Sikes, 94 Ga. 30, 20 S.E. 257, 26 L. R. A. 653, 47 Am. St. Rep. 132. However, the common law, as modified by constitutional and statutory law, judicial decisions, and the condition and wants of the people, in aid of the General Statutes of Oklahoma (section 4200, Wilson's Rev. Ann. St. 1903), being in force in this state, we feel that we are precluded from accepting decisions based on the civil law as governing authority in this jurisdiction. Wherever the common law prevails, every proprietor upon water flowing in a definite channel so as to constitute a water course has the right to insist that the water shall continue to run as it has been accustomed, and that no one can change or obstruct its course injuriously to him without being liable to damages. With regard, however, to surface water not confined to marked channels or banks, there has been a recognized difference. At common law, for the purpose of drainage, construction, or any other lawful purpose, every proprietor had the right to elevate the surface of his own land, or to erect embankments whereby the natural flow of the water from the upper ground shall be stopped, without liability. However, as a result of new conditions and the loathness of the courts to apply principles or conditions to which they were not applicable, and not from any intrinsic force of the civil law as the rule of decisions, modifications or qualifications of the ancient common-law doctrine have been adopted.
Practically all of the common-law courts agree that the surface water, flowing naturally or falling upon the soil, may be diverted in its course, and even thrown back upon the dominant estate whence it came. But is this right absolute at the will of the lower proprietor, or must such exercise be reasonable, for proper purposes, and with due care to inflict injury only when it is necessary? The question of good faith and the manner of doing it are necessarily involved in determining whether or not such right may be exercised. When necessary, and with due care and regard *Page 112 as to the rights of others, although injury may accompany its exercise, under the common law there is no relief. The doctrine that the right may not be exercised wantonly, unnecessarily or carelessly does not rest upon the civil law so much as upon the common law. "Sic utere tuo ut alienum non laedas." Nininger v.Norwood, 72 Ala. 281, 47 Am. Rep. 412; L. R. Ft. S. R. R. Co.v. Chapman, 39 Ark. 463, 43 Am. Rep. 280; Ill. Cen. R. R. Co.v. Miller, 68 Miss. 764, 10 So. 61; Sinai v. L., N. O. T.Ry. Co., 71 Miss. 552, 14 So. 87; Livingston v. McDonald, 21 Iowa, 173, 89 Am. Dec. 563; McClure v. City of Red Wing,28 Minn. 186, 9 N.W. 769; Gillham v. M. C. R. R. Co., 49 Ill. 487, 95 Am. Dec. 627; Rowe v. St. P., M. W. Ry. Co., 41 Minn. 384, 43 N.W. 76, 16 Am. St. Rep. 708; Porter v. Durham et al.,74 N.C. 778; N. W. R. R. Co. v. Carter, 91 Va. 593, 22 S.E. 517; Town v. Mo. Pac. Ry. Co., 50 Neb. 775, 70 N.W. 402.
A class of cases, based upon the adoption of the old common-law rule, hold without qualifications that no cause of action can arise in any case from throwing back surface waters upon the land of the dominant estate. Gannon v. Hargadon, 10 Allen (Mass.) 109, 87 Am. Dec. 625; Dickinson v. Worcester. 7 Allen (Mass.) 19; Inhabitants of Franklin v. Fish, 13 Allen (Mass.) 212, 90 Am. Dec. 194; Parker v. Newburyport, 10 Gray 28; Flagg v. Worcester. 13 Gray 601; Pettigrewv. Village of Evansville, 25 Wis. 223, 3 Am. Rep. 50; Hoyt v.City of Hudson, 27 Wis. 656, 9 Am. Rep. 473; Taylor v. Fickas,64 Ind. 167, 31 Am. Rep. 114; Barkley v. Wilcox, 86 N.Y. 140, 40 Am. Rep. 519; Morrison v. Bucksport Bangor Ry. Co., 67 Me. 355.
However, in England and in many of the states, though the cases are often difficult to reconcile, the right under the common-law doctrine has been qualified. Nininger v. Norwood,72 Ala. 281, 47 Am. Rep. 412; Little Rock Ft. S. R. R. Co. v.Chapman, 39 Ark. 463, 43 Am. Rep. 280; Carriger v. T. T. V. G. R. R. Co., 7 Lea (Tenn.) 388; K. C., M. T. R. R. Co. v.Smith, 72 Miss. 680, 17 So. 78, 27 L. R. A. 762, 48 Am. St. Rep. 579; *Page 113 Ill. Cen. R. R. Co. v. Miller, 68 Miss. 764, 10 So. 61; Boydv. Conklin, 54 Mich. 591, 20 N.W. 595, 52 Am. Rep. 831; Sinaiv. L., N. O. T. Ry. Co., 71 Miss. 547, 14 So. 87; Bowlsbyv, Speer, 31 N.J. Law, 354, 86 Am. Dec. 216; McClure v. City ofRed Wing, 28 Minn. 186, 9 N.W. 769; Rowe v. St. P., M. M. Ry.Co., 41 Minn, 384, 43 N.W. 76, 16 Am. St. Rep. 708; R. A. Ry.Co. v. Wicker et al., 74 N.C. 226; Porter v. Durham etal., 74 N.C. 778; Adams v. Walker, 34 Conn. 466, 91 Am. Dec. 742; Town v. Mo. Pac. Ry. Co., 50 Neb. 775, 70 N.W. 402.
This qualification, being based upon that golden maxim of the common law that one must so use his own property as not to injure the rights of another, also finds expression in the civil law, in the words of Pothier: "Each of the neighbors may so do upon his own heritage what seemeth good to him, in such manner, nevertheless, that he doth not injure the neighboring heritage." If for any purpose of improving and cultivating his land the landowner raises or fills it so that the water which falls in rain or snow upon an adjacent owner's land, and which formerly flowed upon the first-mentioned parcel, is prevented from so doing to the injury of the adjacent parcel, the owner of the latter is without remedy. Washbourn on Easements (3d Ed.) § 353 et seq.
However, the improvement may not be made carelessly, but must be done with a just regard to the rights of others. Bassett v.Salisbury Mfg. Co., 43 N.H. 569; Swett v. Cutts, 50 N.H. 439, 9 Am. Rep. 276; Porter v. Durham. 74 N.C. 767; Raleigh A. R.Ry. Co. v. Wicker et al., 74 N.C. 220; Yazoo Miss. V. R. R.Co. v. Davis, 73 Miss. 678, 19 So. 487, 32 L. R. A. 262, 55 Am. St. Rep. 562; Little Rock Ft. S. R. R. Co., v. Chapman,39 Ark. 463, 43 Am. Rep. 280; Jungblum v. M. N. U. S.W. R. R.Co., 70 Minn. 156, 72 N.W. 971; Sheehan v. Flynn, 59 Minn. 436, 61 N.W. 462, 26 L. R. A. 632.
But the right thus qualified has also exceptions. One is that the owner of the land cannot collect the water into an artificial channel or volume and pour it upon the land of another to his *Page 114 injury. Davis v. Fry, 14 Okla. 340, 78 P. 183, 69 L. R. A. 460; Davis v. City of Crawfordsville, 119 Ind. 1, 21 N.E. 449, 12 Am. St. Rep. 361; City of Evansville v. Decker, 84 Ind. 325, 43 Am. Rep. 86; Patoko Township v. Hopkins, 31 Am. St. Rep. 417; Rychlicki v. City of St Louis, 98 Mo. 497, 11 S.W. 1001, 4 L. R. A. 594, 14 Am. St. Rep. 651; Fremont, etc., R. R. Co. v.Marley, 25 Neb. 138, 40 N.W. 948, 13 Am. St. Rep. 482; Chalkeyv. City of Richmond, 88 Va. 48, 14 S.E. 339, 29 Am. St. Rep. 730; 2 Dillon on Municipal Corporations, § 1051; Gould on Waterways, § 271.
Another exception to the right, which is practically converse to the foregoing exception, is that the owner of the land cannot interfere with the flow of surface water in a natural channel. Where the water has been accustomed to gather and flow along a well-defined channel, where, by frequent running it has worn or cut into the soil, it may not be obstructed to the injury of the dominant tenement. Earl v. De Hart, 12 N.J. Eq. 280, 72 Am. Dec. 395; L. R. F. S. R. R. Co. v. Chapman,39 Ark. 463, 43 Am. Rep. 280; Rowe v. St P. Ry. Co., 41 Minn. 384, 43 N.W. 76, 16 Am St. Rep. 706; Sinai v. L., N. O. T. R. R.Co., 71 Miss. 552, 14 So. 87; Jungblum v. M. N. U. S.W. R.R. Co., 70 Minn. 156, 72 N.W. 971; Boyd v. Conklin, 54 Mich. 590, 20 N.W. 595, 52 Am. Rep. 831; N. W. R. Co. v.Carter, 91 Va. 587, 22 S.E. 517.
In Norfolk Western R. R. Co. v. Carter, supra, the surface water on the land of the plaintiff prior to the building of the road escaped from it over what is now the right of way of the defendant railway company by natural channels into Clinch river, and the flow was obstructed by the failure of said defendant to construct the necessary channels under its roadbed, and consequently the plaintiff was damaged by the accumulation of water.
In the case of Jungblum v. M. N. U. S.W. R. R. Co.,70 Minn. 157, 72 N.W. 972, the "depression was the usual and natural course of channel along which the surface water was accustomed *Page 115 to flow before the roadbed was constructed for a mile or two east of the roadbed, and the channel bears marks of water having flowed through it. Whether this channel is a natural watercourse within the strict definition of the term we need not determine, for the evidence justifies the finding that it was the natural and usual channel for surface water, and afforded a reasonable way for the defendant to construct a culvert for the escape of the surface water without injury to any landowner."
In the case of Boyd v. Conklin, 54 Mich. 583, 20 N.W. 595, 52 Am. Rep. 831, it is said:
"The narrow definition of water courses as natural living streams, which appears in a few cases in the United States, is not an ancient or universal definition. On the contrary, water running in a natural or artificial bed is very frequently, if not generally, so regarded. But names are of small importance, inasmuch as the only consideration that need be looked at is the character and surroundings of the flowage. The following authorities recognize valuable rights in water, and some of them are spoken of expressly as water courses which are entirely distinct from natural living streams. 3 Woolrych on Waters, 146, 147; Wright v. Williams, 1 M. W. 77; Rawstron v.Taylor, 11 Exch. 369; Broadbent v. Ramsbotham, 11 Exch. 602;Beeston v. Weale, 5 El. Bl. 986; Ivimey v. Stocker, L. R. 1 Ch. App. 396; Watts v. Kelson, L. R. 6 Ch. App. 166; Nuttall v.Bracewell, L. R. 2 Exch. 1; Holker v. Poritt, L. R. 8 Exch. 107; Taylor v. Corp. of St. Helen's L. R. 6 Ch. Div. 264; Magorv. Chadwick, 11 Ad. E. 571; Chadwick v. Mardsen, L. R. Exch. 284. * * * Whatever may be the rights of adjoining proprietors as to the use and diversion of waters, there is no right in any one, by raising artificial obstructions, to flood his neighbor's lands by stopping the escape of water that cannot escape otherwise."
In the case of Earl v. De Hart, 12 N.J. Eq. 280, 72 Am. Dec. 395, a water course is defined to be a channel or canal for the conveyance of water, particularly in draining lands. It may be natural, as where it is made by the natural flow of the water, caused by the general superficies of the surrounding land from which the water is collected into one channel, or it may be artificial, *Page 116 as in the case of a ditch or other artificial means used to divert the water from its natural channel, to carry it from lowlands from which it will not flow from the consequence of the surface of the surrounding land; and if such water is regularly discharged through a well-defined channel, and is the accustomed channel through which it flows and has flowed from the time immemorial, it is an ancient natural water course.
In the case of Sinai v. L., N. O. T. Ry. Co., 71 Miss. 552, 14 So. 88, it is said:
"At the ancient common law every landowner fought and fenced against surface water as suited his necessities. It was a common enemy, with which the landowner dealt according to his own pleasure, for his own protection; but this strict rule had its origin when the soil was used for agricultural purposes, in that primeval day of the law's birth and growth, and a railroad corporation as a landowner was undreamed of. Now, with a network of railway lands spread all over the face of the country, we are called to deal, in the application of legal principles, with a condition of affairs not thought of. When every man fought surface water to suit his own fancy, still then, as now, the rule was that each must so use his own property as not to do unnecessary harm to another. Each proprietor has the right to the use and possession of his own soil; each has equality of proprietary rights, and upon each is imposed in organized society, regulated by law resting on mutual concession, reciprocal duties and correlative obligations. No one, natural or artificial, has the absolute dominion and unlimited control of his own lands. Blending these harmonious rules of the common law, and adopting them in their flexibility to the new order of society, we shall do no violence to either while we apply both to the case in hand."
In the case of Town v. Mo. Pac. Ry. Co., 50 Neb. 771, 70 N.W. 403, the facts were as follows:
"A body of land — the plaintiff says about a section (640 acres), one witness says a half section, and others fix it at 200 or 300 acres — within the corporate limits of the city of Lincoln, including some of the improved portions of the city, and all platted or laid out in lots and blocks, etc., on a lot on which was the plaintiff's place of business, has such a surface conformation or *Page 117 is sloped so that, in time of rains or melting of snows, any waters caused thereby flow toward and come together in a body at a place in what witnesses called a 'draw,' others a 'depression in the prairie,' and others a 'channel' or 'waterway,' having its course near the store of plaintiff, and in or directly across which an embankment was made by or for the railway company, and which stopped the flowage of waters in the channel. The company made a culvert by placing at the base of the embankment, in the course of which the surface waters had apparently taken their flow, a tile of the required length, and of an internal diameter of 24 inches."
The jury found from the foregoing state of facts that the "depression" in the land complained of was a water course or natural channel, with banks clearly defined; and the undisputed proof was that the water was surface water, and the verdict of the jury was sustained.
If the water, whether surface water or not, had been accustomed to gather and flow along a well-defined channel, although said channel may have been cut or worn into the soil by the frequent running or flowing of such surface water, yet the same could not be obstructed by the railway company; but it was the duty of said railway company, in the construction of its said road, to reasonably provide sufficient drainage and an outlet to carry off such water as might be reasonably expected to flow along said channel and through such drainage outlet, but, however, in such a manner to do no wrong to the servient tenement — in other words, to provide the outlet as near as reasonably practicable, so as to force the water off the servient tenement in like manner and in the same channel or place as it flowed prior to the construction of said embankment. From the foregoing it is evident that neither was the verdict contrary to the law nor was the defendant below entitled to a peremptory instruction in its favor.
This brings us to the third assignment of error, to the effect that the court erred in its instruction defining a water course. Said instruction was in words and figures as follows:
"The jury are instructed that the word 'water course,' as used *Page 118 in the statute quoted in instruction No. 3, means such a course as that where the natural conformation of the surrounding country necessarily collects therein so large a quantity of water, after heavy rain or after the melting of large bodies of snow, as to require an outlet to some common reservoir, and when such water is regularly discharged through a well-defined channel which the force of the water has made for itself and which is the accustimed channel through which it flows and has ever flowed."
The plaintiff in error has no ground to complain of the same. It was sufficiently favorable to it. Town v. Mo. Pac. Ry. Co.,50 Neb. 771, 70 N.W. 402; Boyd v. Conklin, 54 Mich. 583, 20 N.W. 595, 52 Am. Rep. 831, and authorities therein cited;Jungblum v. M. N. U. S.W. R. R. Co., 70 Minn. 157, 72 N.W. 971; N. W. R. R. Co. v. Carter, 91 Va. 583, 22 S.E. 517; Earlv. De Hart, 12 N.J. Eq. 280, 72 Am. Dec. 395; Sinai v. L. N.,O. T. Ry. Co., 71 Miss. 552, 14 So. 87.
In the same assignment of error plaintiff complains of the following instruction:
"The jury are instructed that, if they find from the evidence that the waterway through which plaintiff's land drains a large area of the surrounding country, about 3 to 3 1/2 miles long, and 1 to 2 miles in width, and carries off, after heavy rains in its channel, large volumes of water, and that the drainage of the surrounding country is such as to cause rain falling thereon to run off very rapidly and accumulate in the waterway across plaintiff's land, which waterway is well defined and the accustomed channel through which such water flows, and so marked as to present on casual glance to every one the unmistakable evidence of the frequent action of running water, such waterway is a water course within the meaning of the statute quoted in paragraph 3 of these instructions."
For the same reason, and under the same authorities, the plaintiff in error has no just ground for complaint.
The fourth assignment of error is unsupported by the record.
It is further contended in the fifth assignment of error that the court erred in directing the consideration of the jury to overflow *Page 119 subsequent to the alleged overflow of September, 1902. There is nothing in the charge of the court submitting any issue as to any overflow subsequent to the date alleged in the petition. There was testimony, however, introduced on the part of the plaintiff as to subsequent overflows, that was competent. Just as it was competent to introduce testimony as to whether or not there had been overflows of such land prior to the date of the construction of the embankment, in order that the jury might determine whether or not the overflow was the primary cause of the construction of the embankment, so it is in like manner competent to make proof as to subsequent overflows, in order that the jury might determine as to whether or not the defendant had exercised reasonable care in providing outlets to carry off water that might accumulate in said water course.
The seventh, eighth, and ninth assignments of error are without merit.
Let the cause be affirmed.
All the Justices concur.