The opinion of the court was delivered by
Bennett, J.In this case the referee was to decide according to law, and, for the facts found by him, his report may be referred to.
*102It is not claimed, in the argument, that the act of turning the river, by the defendants, was, in itself, unlawful; and, it is clear,that if the defendants are to be made liable on the ground of negligence, or want of care, or skill in turning the river, by means of Which the damage was caused, such a case must be affirmatively made out. None is found by the referee, unless the law imposed the duty upon the railroad company to observe the action of the water from time to time, upon the plaintiff’s meadow, and to cast in brush and stones, as a prudent man would do to save bis own land; or, unless the company were bound, as matter of law, to protect the banks of the river, at all events, so that the stream, should not encroach upon the plaintiff’s land.
Ye think no such duty was imposed upon the company. The rights of the defendants, in the construction of their road, were coextensive with what they would have been if the plaintiff’s land had bedh taken by compulsory process. It is true, the referee finds that the turning of the river did necessarily endanger the plaintiff’s meadow; and, if the land had been taken by compulsory process, the damages which would be likely to accrue from such cause. would, or should have been, assessed as a part of the land damages, and it would have been conclusively presumed they were included in the land damages. When the defendants, by agreement, purchased of the plaintiff the land for the use of the company it is to be presumed that the contingent damages which might arise from the turning of the river, in a prudent and proper manner, were taken into account in fixing the price. It was then the duty of the plaintiff, after the stream had been properly turned, to watch the future action Of the Water upon his own lands, and to cast in brush and stones, if necessary to the protection of the banks; and the defendants were not required to protect them from the effetít of the water at all times. All that Would be required of them, was, to use due care in turning the river, and securing the banks in a reasonable manner front the effects of the stream. As no negligence or want of skill in performing this duty is found, the judgment of the county court is reversed, and judgment on the report for the defendants.