The opinion of the court was delivered by
Poland, J.The defendants’ first objection to the recovery of the plaintiff upon the report of the referee, is, that the facts reported as found, do not sustain the charge made by the plaintiff in his declaration. It is doubtless true that where a pending action is submitted to a referee, and the submission is made a rule of court, that the plaintiff must proceed for the same cause of action named in his declaration, and will not be permitted to abandon that cause of action, and go for another for which the suit was not brought. But this is an objection that must go to the very substance of the action, and to the identity of the cause of action itself.
All questions affecting the mere form of the suit, and all questions of variance merely, between the declaration and proof, are considered as waived by the reference, provided it sufficiently appears that the matter set up as the plaintiff’s ground of recovery *614before tbe referee, is the same real cause of action for which he sued. Many cases of this character have been before the court, and the court have finally settled the rule in repeated cases, that every matter which by the rules of law could properly have been introduced by way of amendment to the declaration, will be considered as having been added, and its absence waived, or cured, by the reference. The rule established by the court in repeated cases, as to the power of the court to allow amendments, only limits it to the same cause of action, and form of action, and the same parties to the suit; defects of any other character, to any extent, may be cured by amendment. In the present case, the declaration charges the defendants with obstructing and turning a water-course on the plaintiff’s land, whereby certain^damages were sustained by the plaintiff. By the referee’s report, it appeal’s that the real complaint of the plaintiff was, that the defendants having built their road over the old highway through his farm, upon the west side of which there had been for many years a ditch which served to carry away the surface water on the plaintiff’s farm, west of the highway, and the defendants having substantially continued the same ditch for some years after making their road, finally allowed the ditch to become filled up with sand, so as to throw the accumulation of surface water, west of the railroad track, over the track upon the east side, and damage the plaintiff. Now, perhaps a ditch made to carry off the mere surface water produced by rains, or the melting of snow, and not as a channel for a running stream, may not with the strictest propriety be called a water-course, but in common parlance it is often so styled, and would perhaps as generally he understood to be meant by that term, as the natural channel of a stream, or an artificial channel into which a stream of water had been made to run.
At any rate, we think the court would have had ample power to make amendments that would have made the plaintiff’s declaration cover all that was tried before the referee.
The defendants claim too, that the facts reported show no liability upon them; that all that they have done must be taken to have been included in, and covered by, the award of the commissioners.
It must be admitted under the award of the commisssioners, that in their appraisal everything was considered and included, which *615the plaintiff would suffer by the 'construction of the defendant’s road in a prudent and reasonable manner, and all the damages that w.ould he likely to accrue to him by the continuance of the road, managed and taken care of with reasonable care and prudence.
We apprehend that a railroad company may, as a question of prudence and care, as well be required to have regard to the prevention of damage to a land owner, by the accumulation of surface water merely, as of a running stream, when the geographical formation and surrounding circumstances are such as to make it apparent to reasonable men that such precautions are necessary, and that ordinarily, what would be a reasonable performance of their duty under a given state of circumstances, would be a question of fact, and not a question of law for the court. The defendants seem to have thought that their duty, or safety, required a ditch to he kept open on the west side of their track, on the plaintiff’s land, to carry off the large accumulation of surface water there, and they kept it open for some years, but finally allowed it to become filled up, and the water to run over and damage the plaintiff.
The referee finds that this was not such prudence and care as the defendants were bound to exercise for the protection of the plaintiff, and if it was not, then we can not say it was included by the commissioners in the award. From what is reported, we can not say the referee was not well warranted in his conclusion, from the evidence and facts before him, and the judgment of the county court accepting his report is affirmed.