With reference to issues he submitted to them the trial court told the jury that the evidence showed that appellant by constructing and maintaining the east and west ditch diverted surface water from its natural course to the north and south ditch, and then instructed them as follows:
"If you believe from the evidence that the defendant, by his terraces, caused water to flow into the north and south ditch which otherwise would not have flowed into said ditch, but if you further believe that such waters would not have caused the overflow of said ditch if the water had not been diverted into said ditch from the east and west ditch, then in that event you will answer `No' to questions Nos. 2 and 4."
In said court appellant objected to the instruction, insisting that "he would be entitled to have question No. 2 answered in the affirmative if said (north and south) ditch would not have overflowed had the defendant not diverted water" thereto by the terraces he constructed; and in this court complains because the trial court overruled his objections and because that court refused his request that he instruct the jury if they answered question No. 1 in the affirmative to also answer question No. 2 in the affirmative if they believed "that the north and south ditch would not have overflowed if the defendant had not diverted water into said (north and south) ditch by his terraces." Appellant cites Frazier v. Rollins (Tex.Civ.App.) 230 S.W. 874, decided by this court in 1921, as a case supporting his contention, and we think it does. There the trial court instructed the jury as follows:
"The evidence in this case shows that the plaintiffs cleaned out and changed ditches and diverted water by preventing its flow to the westward over their levees on their land. Now, if you believe from the evidence that in cleaning out and changing said ditches the natural flow or outlet for the water was narrowed or diminished in places, or enlarged in *Page 217 places, and that such construction of said ditches and levees and diversion of the water, or any of it, from its natural course proximately caused or contributed to the accumulation of water and the overflowing and damage, if any, to the plaintiffs' land and crops, you will find for the defendant."
The instruction was held to be erroneous because its effect was to relieve the defendant of any liability if the plaintiffs' acts "contributed [quoting] to the destructive overflow of the freshet waters on plaintiffs' land." And such, as we construe it, was the effect of the instruction complained of in the instant case. Obeying the instruction the jury could not have answered question No. 2 in the affirmative if they believed that surface water diverted by appellee's terraces did not alone cause the north and south ditch to overflow, but believed, instead, that that water, together with surface water diverted by appellant, caused same to overflow. The holding in the Frazier Case was that a defendant who wrongfully diverts surface water is not relieved of all liability to a plaintiff who also diverts such water, when the water diverted by each unites in causing an overflow which damages the plaintiff. In such a case, it was in effect held, the defendant is liable for a proportionate part of the damages suffered by the plaintiff. See Anderson v. Highland Lake Co. (Tex.Civ.App.) 258 S.W. 218.
If the ruling in the Frazier Case was correct, the contention of the appellant in this one should be sustained. We think the ruling was correct. Therefore the judgment in the instant case will be reversed and the cause will be remanded to the court below for a new trial.