I dissent on the ground that the defendants are not required to provide for taking care of surface water which may accumulate upon the premises adjacent to their right of way. This proposition, as I understand it, was expressly held in the case of Erwin v. Erie R. R. Co. (98 App. Div. 402; affd., without opinion, in the Court of Appeals, 186 N. Y. 550). In view of that decision I fail to see how the conclusion can be reached that the appellants are liable for the damages which the respondent has sustained. Ample provision was made by the defendants for taking care of the waters of Dead creek and Rose creek, but it appears that a mile away the banks of Cattaraugus creek gave away, came down over meadow and flat lands intervening, finally uniting with the waters of Dead creek and *826Rose creek, and making such volume as could not be accommodated in passing under the bridge erected by the defendants. -My own notion is that a railroad corporation, or other quasi public servant, should be required to make provision in the construction of its railroad by which not only the waters of a stream, but also the surface waters which may lead into such stream, should be provided for by such corporation. But it seems that it has been repeatedly held that such corporation may construct its road in such manner as to make a swamp of the lands adjacent to it, provided there is no natural waterway defined, and the natural drainage of which such railroad, by its embankment, has obstructed: As I understand the law, as settled by the courts of this State, it is-to the effect that a railroad corporation, if there are no defined watercourses above its embankment, may convert the premises above, naturally drained towards and against such embankment, into a useless swamp, and that such railroad company incurs no liability because of the damages sustained by the adjacent landowners.
I appreciate that the question here involved is not easy of solution. The watershed of a lot belonging to my adjoining neighbor descends toward my lot, yet, notwithstanding, concededly I have a right to erect a stone or brick wall which will effectually prevent the surface water from my neighbor's lot flowing onto mine, making a quagmire of his premises. I understand, under the authorities, that this may be legally done. If so, I fail to perceive how it can be held in the case at bar that by reason of the overflow of a creek a mile away, which overflow passes over meadow and flat lands without any sign of watercourse until they join Dead creek and Rose creek, adjacent to the lands of the defendants, it should be required to be provided for by the defendants. Under the authorities it seems to me that except for Dead creek and Rose creek, all the rest of the country being meadow or flat lands, the waters coming over it would clearly be surface water against which the defendants were under no obligation to provide. It seems to me that it does not change the rule and that the defendants having amply provided for the waters of Dead creek and Rose creek, were not required to provide for the surface water which came down over a mile in width of meadow and flat lands, without any sign of a stream or watercourse, and finally eame in and joined with *827the comparatively little streams known as Dead creek and Rose creek.
I think that the plaintiff in the case should succeed in equity and upon principle, but it seems to me that recovery is barred by the decisions "of the highest court of this State, and, therefore, I vote for a reversal of the judgment.
Judgment affirmed, with costs.