On Rehearing.
lEn Banc. December 10, 1919.]
Bridges, J.Upon rehearing En Banc, the court adheres to the disposition made of this case by its department opinion. However, inasmuch as there have been two amici curiae briefs filed herein since the opinion was written, and because of the importance of the questions involved, we have concluded to add something to the original opinion.
This is a case where the respondent constructed and maintained a dam for the purpose of creating a backwater pond to be used by it in its logging operations; the dam broke and the water so confined flowed over the plaintiff’s lands, and this action was brought to íecover alleged damages caused thereby. From a verdict and judgment in favor of the defendant, this appeal is taken. For more of the facts involved, reference is made to the former opinion.
Generally speaking, there are two chief questions involved in a case of this character; the first is, whether the dam owner must construct and maintain his dam entirely at his own peril and as an insurer against damage, or whether he will be excused from damages caused by floods which he could not reasonably have *605anticipated, and if the latter be the correct doctrine, then the care required of such dam owner to anticipate freshets and flood waters; and secondly, whether, as to all floods and conditions which he is required to anticipate, he must maintain his dam at his peril and as an insurer, or will reasonable care be the measure of his duty. In our former opinion we meant to deal only with the first proposition mentioned. It was not necessary to a decision of the case that we should deal with the second proposition above mentioned, because the trial court had instructed the jury that defendant was bound to maintain his dam so that the same would withstand “not only the usual and ordinary freshets, but must also be sufficient to withstand such extraordinary freshets as an ordinarily prudent person would reasonably expect to occur.” In other words, the trial court instructed the jury on the theory that the dam owner would be liable, regardless of the question of care or negligence, for damage resulting from the breaking of his dam as the result of such floods as a reasonably prudent man would be required to anticipate.
This instruction was certainly as favorable to the appellant as he could have asked, because it eliminated from the case the question of the negligence or lack of negligence of the defendant and imposed upon it the duties of an insurer.
We wish to say, however, that in the departmental opinion we did not mean to, nor do we now, either approve or condemn the instruction given by the trial court; we only hold that it was as favorable to the appellant as any view of the law would justify, and therefore he is not in position to complain.
On the first above mentioned question we intended to hold, and we now hold, that the dam builder and owner does not build and maintain the dam at his *606absolute peril and is not an insurer, but that, on the contrary, he will be excused by acts of God or floods which he could not have anticipated, and that he would be required to anticipate only such floods as a reasonably prudent man, acquainted with all of the surrounding circumstances, would anticipate.
But it is said that this holding is in accordance with the doctrine of the cases of Fletcher v. Rylands, L. R., 1 Exch. 265, and Defiance Water Co. v. Olinger, 54 Ohio St. 532, 44 N. E. 238, 32 L. R. A. 736, which cases this court in its first opinion seemed to criticize. We deem it unnecessary at this time to determine what those cases actually hold; it is sufficient to say that, if our holding is in accordance with the view of those cases, then we follow them; otherwise we do not.
Holcomb, C. J., Mount, Mitchell, Parker, Tolman, Fullerton, and Main, JJ., concur.