The defendant in error contends that we cannot consider any of the questions raised in this case because it appears that the case-made does not contain all the evidence, for the reasons as stated in his brief:
"A large part of the evidence introduced by the plaintiff on the trial had reference to a certain map or diagram purporting to be a representation of the premises of the plaintiff and defendant, the streams running through said premises, and the dike or dam complained of. This diagram or map was used in the examination of nearly all the witnesses. In testifying the witnesses would indicate upon the map certain objects, also directions in which water flowed, and other things, indicating same by pointing out the objects, tracing the flow, etc., accompanied by the words 'here,' 'this way,' etc., but no marks were made by them upon the map, to preserve a record of their references thereto for future reference, and no words were *Page 183 used by the witnesses to indicate said directions, etc., but the court and jury received such evidence through their sense of sight only, and no record of any kind is preserved of that testimony."
We do not agree with counsel. A map was introduced in evidence and accompanies the case-made. The record nowhere discloses that more than one map was used, and we have carefully compared the evidence with the map, and it makes it sufficiently intelligible.
The case-made comes here on a demurrer to the plaintiff's evidence, and it is well settled that in such case it must be taken that he who interposes the demurrer admits all the facts which the evidence in the slightest degree tends to prove, and all the inferences and conclusions which may be reasonably drawn therefrom, and this court will consider as withdrawn all the evidence which is most favorable to the party demurring.Ziska v. Ziska, 20 Okla. 634, 95 P. 254, 23 L. R. A. (N. S.) 1.
Applying this rule to the case at bar, it is admitted, for the purpose of this demurrer, that there is a branch heading on the land of the plaintiff, which flows a short way on the plaintiff's land, then goes over on the defendant's land, and then flows off to the southeast; that in case of floods the water from Little Red found an outlet through this branch; that the plaintiff's dam is built directly across it and prevents its flowing as it did before the construction of the dam; and that prior to the construction of the dam the water ran off through this branch, but that this is prevented by the dam, and the water is ponded on the land of the plaintiff. A reasonable deduction from this evidence is that this branch is a waterway within the definition of this court in C., R.I. P. Ry. *Page 184 Co. v. Groves, 20 Okla. 101, 93 P. 755, 22 L. R. A. (N. S.) 802, where it is held:
"Where the surface water has been accustomed to gather and flow along a well-defined channel, which by frequent running it has worn or cut into the soil, so as to have well-defined banks, it may not be obstructed to the injury of the dominant proprietor."
In Town of Jefferson v. Hicks, 23 Okla. 684, 102 P. 79, 24 L. R. A. (N. S.) 214, it is held:
"The owner of the lands situated upon a water course may construct an embankment thereon to protect his land from the superabundant water in times of flood; but, in doing so, he must so place the embankment that the natural and probable consequences of the embankment in times of ordinary floods will not be to cause the overflow to erode, destroy, or injure the lands of other proprietors upon the water course."
In Gulf, C. S. F. R. Co. v. Richardson, 42 Okla. 457,141 P. 1107, it is held:
"The common law governing the diversion of surface water as adopted and applied in this state has been modified and restricted to this extent, namely, that each proprietor may divert the same, cast it back, or pass it along to the next proprietor, provided he can do so without injury to such adjoining proprietor. Under this rule * * * no one is permitted to sacrifice his neighbor's property in order to protect his own." See also, Inc. Town of Idabel v. Harrison, 42 Okla. 469,141 P. 1110; St. L. S. F. R. Co. v. Ramsey, 37 Okla. 448,132 P. 478; Davis v. Fry, 14 Okla. 340, 78 P. 180, 69 L. R. A. 460, 2 Ann. Cas. 193.
In Quinn v. C., R.I. P. R. Co., 23 S.D. 126, 120 N.W. 884, 22 L. R. A. (N. S.) 789, it is held that a railroad company cannot, in the construction of its road, negligently obstruct a ravine through which surface water is *Page 185 accustomed to flow, and cast such water back on the land of an upper proprietor.
In Wharton v. Stevens, 84 Iowa, 107, 50 N.W. 562, 15 L. R. A. 630, 35 Am. St. Rep. 296, it is held:
"There is apparently a conflict of authorities on this point which is not real, resulting from the undefined use of the words 'surface water.' When such water flows by a well-defined and natural course upon lower lands, that flow cannot be interfered with either by the upper or lower proprietor. But when such water has no defined course, but spreads out over the land without a well-defined course, it may be turned by the landowner in any direction. But, where surface water has a fixed and certain course, as a swale, though it may be narrow or broad, its flow cannot be interrupted to the injury of an adjoining proprietor."
In Pinkstaff v. Steffy, 216 Ill. 406, 75 N.E. 163, it is held:
"The interest of good husbandry does not justify the construction of a levee by the owner of the servient estate along the bank of a creek to protect his land from overflow in times of flood, where the effect thereof is to interfere with the natural flow of the water to the injury of the owner of the dominant estate."
We think the cases cited above are decisive of the case at bar.
The defendant in error has cited the case of Taylor v.Fickas, 64 Ind. 167, 31 Am. Rep. 114, but the facts in that case are different from those now under consideration. In that case the damage complained of was that the defendant had planted a row of trees along the boundary line between his land and that of the plaintiff, which obstructed the passage of driftwood in case of a flood, but in distinguishing *Page 186 that case from those of the character now under consideration the court says:
"The true doctrine in such a case, we believe, was expressed by the chancellor in the case of Earl v. De Hart, 1 N.J. Eq. 280 [72 Am. Dec. 395]: 'If the face of the country is such as necessarily collects in one body so large a quantity of water, after heavy rains and the melting of large bodies of snow, as to require an outlet to some common reservoir, and if such water is regularly discharged through a well-defined channel, which the force of the water has made for itself, and which is the accustomed channel through which it flows, and has flowed from time immemorial, such channel is an ancient natural water course.' "
In our opinion, the evidence of the plaintiff, and the conclusions which may be reasonably drawn from it, brings this case within the authorities above cited, and there was error in sustaining the demurrer to the evidence.
If the inference to be drawn from the evidence is a reasonable one, although not a necessary one, the court will not invade the province of the jury by taking from it the right to pass on the fact to be deduced from such inference.Waters-Pierce Oil Co. v. Deselms, 18 Okla. 107, 89 P. 212.
We therefore recommend that the judgment be reversed, and the cause remanded for a new trial.
By the Court: It is so ordered. *Page 187