Concurring. — The trial judge directed the jury to find a verdict for the defendant. The declaration alleged that the plaintiff’s land was located near a river; that the defendant built a dam in the river below plaintiff’s land which obstructed the flow of the waters to such an extent that the water level in the river opposite the plaintiff’s land Avas raised, Avhiclx prevented the natural subterranean drainage of the plaintiff’s land and the Avaters from the river percolating and seeping through the ground have saturated the plaintiff’s land so that it is unfit for cultivation or for any useful .purpose, and the same has been rendered a total loss to the plaintiff: A demurrer -to the declaration was overruled. There was a plea of not guilty and that the injury resulted from natural causes beyond defendant’s control; that the plaintiff’s injury was due to his oavu neglect and that no damage was sustained by reason of the defendant’s acts. A “second amended additional plea” averred that the dam was constructed under lawful authority granted to defendant by the United States government; that the defendant is and at the time the water was raised in the river was the owner of the land overflowed and covered by the Avaters of the river, and that the defendant is using the same in a laAvful and reasonable manner. There was a *10motion to strike this plea which was denied, wlieréupon thfe plaintiff joined issue upon the pleas and went to trial. This action of the court is made the basis of the, second assignment of error.
The plea differed from a former plea which was held to be bad on demurrer only in the averment that the defendant was the owner of the land overflowed and covered by the' waters of the river. Now the plea presented the following points urged in avoidance of the liability for the injury which the plaintiff alleged had occurred; First, the dam was built under authority from the Federal Government; second, the lands overflowed and covered by the (impounded) waters of the river belonged to the defendant, and, third, that the defendant was “using the same (waters) only in a lawful and reasonable manner.”
The third statement is clearly a conclusion of law, and by no means follows as a consequence of the first statement. Because it cannot be contended- that the Federal Government by permitting one to construct a dam in a navigable waterway thereby absolves the favored one from all liability for injury resulting from the saturation and overflow of another’s land lying adjacent. The defendant may defend his position upon the doctrine of “reasonable user,” but such defense must consist of averments of fact showing a reasonable user, and not conclusions of law. What in any case is a reasonable use is ordinarily a mixed question of law and fact to be submitted to the jury under proper instruction from the court. Bassett v. Salisbury Mfg. Co., 43 N. H. 569; Meeker v. City of East Orange, 77 N. J. L. 623, 74 Atl. Rep. 379, 25 L. R. A. (N. S.) 465.
The second statement constitutes no defense whatever if the doctrine of “reasonable user” obtains in this State instead of the English rule of absolute ownership. The question presented by this case has not been settled by *11any adjudication in this court. The case of Tampa Waterworks Co. v. Cline, 37 Fla. 586, 20 South. Rep. 780, dealt with a well defined subterranean stream and the maxim “sic utere tuo ut non alienum laedas” was held to apply.’ The declaration in this case is so framed that the defendant is charged, first, with obstructing the natural subterranean drainage of the plaintiff’s land, and, second, with causing the pent up waters of the river to percolate or seep into and through the plaintiff’s land, in either case causing the land to become saturated with water and unfit for cultivation. The plaintiff was not a riparian owner, his land was not bounded upon the stream, he therefore could not call in question the defendant’s right to overflow the whole surface of its land Up to its line, provided the water did not flow upon or soak into the plaintiff’s land, but the declaration alleged that is what happened; the plea, therefore, was no defense.
As to that phase of the declaration which complains in substamce that the plaintiff’s land drained into and through the defendant’s land adjoining and thence to the river, and that the defendant by damming the waters of the river obstructed the percolation of the surface waters, the plea is utterly inapplicable and constitutes no defense, because it admits in the second statement the very thing which constitutes the plaintiff’s cause of action, viz, the stopping or obstructing the flow of subsurface waters on the plaintiff’s land, which percolated in subsurface streams and veins through the defendant’s land to the river, by overflowing or covering its land with water to such a height as to prevent the natural drainage of the plaintiff’s land by percolation. Under the doctrine of correlative rights to the control of subsurface waters and the doctrine of reasonable user, the defendant had no right to set back the percolating waters upon the plaintiff’s land, (See *12Meeker v. City of East Orange, supra; Bassett v. Salisbury Mfg. Co., supra.) unless the use to which the defendant was putting his own land was reasonable; while a cause of action is clearly stated in so far as the declaration alleges that the pent up waters of the river on the defendant’s land soaked into and upon the plaintiff’s land injuring it as alleged. Under this view of the case the declaration was duplicitous. No objection however was made to it upon this ground.
Now as I view the evidence there is enough to support a verdict for the plaintiff upon either theory of the case made by the declaration, while the “second amended additional plea” presented no defense, and tendered only immaterial issues and should have been stricken upon the plaintiff’s motion. See Hubbard v. Anderson, 50 Fla. 219, 39 South. Rep. 107. There was evidence to support the plea and none to contradict it. Assuming as the court did that the plea was good, he directed a verdict. I think this was error. The jury should have been permitted under proper instructions from the court to determine whether the undersurface streams or veins in plaintiff’s land had been obstructed by an unreasonable use by defendant of its land so as to injure the plaintiff, or whether the waters pent up on the defendant’s land soaked into the plaintiff’s land injuring it as alleged.