Dissenting.—I agree with the propositions of law supported by the authorities cited in the majority opinion to the effect that the common-law rule applicable to the flow of surface rain-water is in effect in this state, and as a consequence.the owner of lands may improve the samé without liability to answer in damages for injuries resulting to adjoining premises from the change of the flow of surface waters caused incidentally by, and as a consequence of, the improvements made. Within this principle of law, a railroad company may throw up embankments for a roadbed upon its right of way, even though the embankment may incidentally impede the flow of surface water from the adjoining premises and cause such waters to be thrown back hpon the said premises to their injury, as held in Walker v. New Mexico S. P. R. R. Co., 165 U. S. 593, 41 L. Ed. 837, 17 Sup. Ct. Rep. 421. The owner has the right to fill in his premises, and elevate the surface, or to ditch the premises, and to construct buildings upon his lands in such a manner as to protect the lands against the flow of surface water from *367the adjoining lot, as held in Levy v. Nash, 87 Ark. 41, 20 L. R. A., N. S., 155, 112 S. W. 173, and he has the right to shut out the flow of surface water by grading or otherwise, without regard to whether his improvements, made for the purposes, incidentally increases the flow on the adjoining lot, as held in Reilly v. Stephenson, 222 Pa. 252, 70 Atl. 1097. And the owner, this appellant, has the right to improve its street by depositing suitable dirt therein for the purpose of raising the surface of the street up to an approved level or grade, without having to answer in damages for injuries resulting to an adjoining owner from a flow of surface water, the natural flow of which was incidentally changed by and as a consequence of such street improvements, as the facts in this case show, The above authorities amply support this right.
In all eases the owner must so exercise his rights mentioned, as in making all improvements, restricted by that other well-recognized maxim of law, namely: “That every man must so use his own as not unnecessarily to do injury to another.” This rule was applied by us in Kroeger v. Twin Buttes R. R. Co., 14 Ariz. 269, Ann. Cas. 1914A, 1289, 127 Pac. 735, where we held in effect the facts stated in the complaint prima facie show that the defendant had failed to so use its property.
The restriction is recognized in Sheehan v. Flynn, 59 Minn. 439, 26 L. R. A. 632, 61 N. W. 462, Hughes v. Anderson, 68 Ala. 280, 44 Am. Rep. 147, Ray on Negligence of Imposed Duties, 301, O’Brien v. St. Paul, 25 Minn. 335, 33 Am. Rep. 470, and in Hume v. City of Des Moines, 146 Iowa, 624, Ann. Cas. 1912B, 904, 29 L. R. A., N. S., 126, 125 N. W. 846, cited by the majority opinion. Many other authorities may be cited to the same effect. In all the cases cited the principle is applied to the case in which the improvements complained of were made on and within the limits of the lands improved, and it could be applied to no other conditions than such as involve improvements upon the owner’s lands. As a consequence, the city alone can claim the right to improve'its streets, and can be called upon to answer for damages only when it has made such improvements in such a manner as the plaintiff’s premises have been unnecessarily injured. The city is not required to respond in damages for *368such injuries as incidentally result from the improvements lawfully made, in a reasonably proper manner. Johnson v. White, 26 R. I. 207, 65 L. R. A. 250, 58 Atl. 658. The same rules of law would apply to Jaynes and Dunseath while making improvements upon their property.
It is clear that the city, as shown in this record, had the lawful right to deposit earth upon the street to an amount sufficient to raise the surface to the grade level adopted by the city. The plaintiff purchased his lots chargeable with facts sufficient to put him on notice of the grade level adopted for North Third avenue. Plaintiff graded his lot with reference to the grade of the street upon which his lot abutted. The grade of the street was located from a datum station at North Third avenue. He is in no position to complain that, when he purchased his property, he was misled by the natural conditions, and these conditions have been changed to his disadvantage by the city grading the street to the approved level.
In the building up of a city the natural channels for surface water are changed, and as changes in the ground are inevitable and legitimate, and therefore natural, the new channels through which, under natural laws, the surface waters are discharged must also be regarded as natural, as held in Larrabee v. Cloverdale, 131 Cal. 96, 63 Pac. 143. I have found no authority holding that a land owner may go upon adjoining lands and make improvements, such as a drain, thereon for the purpose of protecting his premises from the natural flow of surface water, and such drain, made under such circumstances, has been held to be a natural channel for surface water flow and discharge. No such authority exists. Such drain may become a natural channel under certain conditions, but those conditions are not present in this ease. The land owner acquires rights to maintain such drain made by him on the lands of an adjoining owner from some other source and by some other right than because -it is a natural channel. The principle referred to in Larrabee v. Cloverdale, supra, is directly beneficial to the city. When it has lawfully made the improvements upon its street, by 'depositing earth therein, it' changes, by such improvement, the surface ground, and therefore the changes are natural, and the new channels through which, under natural laws, the *369surface waters are discharged must also be regarded as natural channels. The natural channel, therefore, was that followed by the surface water through Jaynes’ back yard, over the alley and on to plaintiff’s premises. So considered, the city owed plaintiff no duty to protect his premises from such flow of surface water. It was plaintiff’s duty or privilege to fight this surface water flow as a common enemy, with such means as he may choose. • And this is the common-law rule applicable to such cases.
The majority opinion holds that the earth placed in the street by the city served to impound the surface water, causing it to form in a basin or reservoir, from which the water was precipitated on appellee’s premises-in a greater volume and with added force. The complaint alleges that “defendant caused to be dumped and piled earth and material at and near the intersection of said East First street and North Third avenue, for a distance of. about 100 feet northerly, from said intersection, which said earth and material was so carelessly and negligently dumped and piled and maintained on said North Third avenue, and at the intersection of said avenue and said East First street, that the ditch on and along said Third avenue was entirely obstructed, and the waters flowing from said block 2 at times of rain were diverted from flowing into said East First street, and prevented by said dumps and piles of earth and material from flowing to and along said East First street; and the defendant negligently failed to provide any outlet for said water, so that the same collected behind said dumps and piles of earth and material, and was caused by said dumps and piles of material, so placed and maintained by defendant, to flow over and upon and into the premises of the plaintiff.” This allegation does not justify the holding that the water was caused to flow on to appellee’s premises “in a greater volume and with added force.” No such claim is made by the appellee in his complaint. The claim is made that the dumps and piles of earth diverted the flow of water, and caused it to flow over and upon and into his premises. I can discern a material difference between an act that impounds surface water into a basin or reservoir, and causes it to flow in greater volume and with added force, and one that diverts the natural flow of water. The act that impounds surface water into a basin *370or reservoir in destructive quantities, where the material impounding is negligently left in a weakened condition insufficient to withstand the natural strain upon it, and the walls of the basin give way, and the water escapes upon adjoining premises in destructive quantities, or when the owner by his improvements negligently impounds surface water, and provides no outlet, which causes the water to flow on to adjoining premises when it would not otherwise have flowed, in either instance the results being the same, the owner would be liable to the same extent as though he had intentionally constructed an artificial channel and purposely turned the water on to the adjoining premises. The wrong consists in the negligent impounding of the water, not in the making of the lawful improvements.
The complaint makes the negligent and careless manner of making the improvements the cause of the damage, and not' the impounding of the surface water. The complaint avers that the surface waters flowing from block 2 were diverted by the improvements on the street, and caused to flow on to plaintiff’s lands, causing the damage. Where the improvements so diverting the flow of the surface water were negligently and carelessly made, hence the damages, a very different cause is relied upon by the plaintiff for recovery than is assigned by the majority opinion as a right to a recovery. The evidence upon this point is conclusive of the theory upon which plaintiff relied for a recovery. Witness Jaynes for the plaintiff states as his evidence: “When they dumped the dirt on Third avenue, it did fill up my ditch. We had a sort of a drain, a little ditch in there, and that dirt—the dirt was thrown up there so that it just turned that water. The point of the dirt instead of draining the water this way (indicating) had turned it toward my yard, just the peculiar way it was dumped in there. I did not notice at the time that would be the effect of it, but it happened. This ditch . . . caused the water that was coming down this wash to come south of the way it originally traveled, some 35 or 40 feet, and then carried along First street.” The plaintiff denied all knowledge of the conditions upon Third avenue. It was his opinion that the street was not filled up to the level of Jaynes’ lots. He claims no interest in what was being done on that street. He stated: “I had no interest in touching *371•anything on Third street [corrected by him to Third avenue]. I had provided for the protection of my property in the first place.” No other evidence appears in the abstract of the record upon this point. There is no evidence in the record from which can be drawn the inference that the piles of earth resulted in impounding the water into a basin or reservoir, from which it flowed on to appellee’s premises; but, on the other hand, there is the above positive evidence, uneontradieted in any part of the testimony, that the earth served to divert the flow of the surface water from its course along the ditch made by Jaynes to the appellee’s premises.
It is clear that the plaintiffs relied upon the negligence of the city in making improvements upon the street, and the negligence relied upon was the failure of the city to furnish a drain for the flow of surface water coming on to North Third avenue from block 2, so as to prevent such surface water from reaching his premises. In other words, the plaintiff seeks to maintain his right to be protected from the flow of surface water, naturally falling upon adjoining premises, by requiring the owner of such adjoining premises to so make improvements that such improvements will not interfere with the natural flow of surface water. Prevent, as it were, an owner of adjoining lands from making such changes in the surface of his lands as will change the natural flow of surface water over such lands. This position, if maintained, would charge the upper lands with a servitude to the lower lands, which is not recognized under the common-law rule, as is well established. The position is squarely within the civil-law rule, which is not recognized in this jurisdiction. Let us suppose that plaintiff could invoke such rule, then, as the evidence in the ease shows, the alley lying along the east side of his lots belongs to the city, and, before Jaynes or plaintiff improved their lots, a depression ran over Jaynes’ lots, over the alley and over the plaintiff’s lots. By the rule that requires the city to control the flow of surface water on North Third avenue, and prevent it from flowing over adjoining premises to their injury, by this same rule, plaintiff could require the city to prevent the surface water from flowing from its alley on to his premises, or else pay damages. Plaintiff could make ditches and embankments on defendant’s alley and recover the cost from defendant. No such *372rule is recognized in this state. Por these reasons I am unable to concur in the majority opinion.
The complaint fails to state a cause of action, and the judgment should be vacated and cause dismissed.
Application for rehearing denied.
NOTE.—The question of municipal liability for injury by embankment in street is treated in note in 20 L. R. A., N. S., 626.