concurring.—I concur in the judgment on the ground that the character, size, and operation of the slough which was obstructed cannot be satisfactorily determined from the pleadings upon which the cause was submitted and decided. Before a court of equity would be authorized in declaring the levees and dams *136of a reclamation district to be nuisances, and ordering them abated as such, something more should be shown than that the slough obstructed does at all times, when unobstructed, “ divide the waters of the river in times of flood, and carry and conduct large volumes thereof to the southwestward, away from the lands of plaintiff to a natural basin.”
It is true, the complaint alleges that said slough was a natural watercourse, but other allegations of the complaint and answer (which must be taken as true) leave that matter very doubtful and unsatisfactory.
The state and its grantees are charged with a great trust with respect to swamp and overflowed lands- under the laws by which they are granted, and it is by no means clear that that trust can be executed if we apply strictly the common-law. rules applicable to nuisances caused by the obstruction of natural watercourses. It may be necessary, under our peculiar conditions as to seasons, watersheds, river systems, and swamp-lands, to find a new definition for the term “natural watercourse,” if we are to apply old principles to the innumerable sloughs which are found in our overflowed districts, and which have well-defined banks and beds. There are channels in this state not well defined in bank and bed, without water in them during certain months of the year, yet so important in operation during high water that to dam them would be disastrous to life and property; and there are sloughs running out from the rivers in the low-lands with well-defined banks and beds, and with water running bank-full every month in the year, yet so unimportant in their operation that to close them would have no appreciable effect upon the river or its tributaries, except to improve the same for navigation, but so numerous in the overflowed districts that to restrain the obstruction of them simply because they are within the accepted definition of a natural watercourse would in many instances prevent the reclamation of *137large and valuable tracts of land which the state and its grantees have undertaken, and are in duty bound to reclaim. The dam and levee complained of were constructed in 1872, and have ever since been maintained. This action was commenced January 20, 1883, to procure an abatement of the levee and dam, and recover the sum of five thousand dollars damages alleged to have been caused by the destruction of plaintiff’s growing crops, fences, and other improvements, and it does not appear that any complaint was made prior to the last-named date.
If the slough is one which, considering the end to be accomplished by defendant, and with due regard to the property rights of others, could not lawfully be obstructed, it may be fairly inferred that plaintiff would have discovered the fact, and proceeded to have the obstruction abated long before the commencement of this action. The delay in bringing the suit adds to the uncertainty arising from the complaint and answer concerning the equity of plaintiff’s prayer for the abatement of the levee and dam as a nuisance.