— The agreed statement of facts is to be treated as a special verdict. The only question which we deem it necessary for us to consider is, whether that statement is sufficient to support the judgment rendered in this case. The amended petition is based upon section 810, Revised Statutes. That section is as follows: -“It shall be the duty of every corporation, company or *605person owning or operating any railroad or branch thereof in this state, and of any corporation, company or person constructing any railroad in this state, within three months after the completion of the same, to cause to be constructed and maintained suitable ditches and drains along each side of the road bed of such railroad, to connect with ditches, drains or water courses, so as to afford sufficient outlet to drain and carry off the water along such railroad, whenever the draining of such water had been obstructed or rendered necessary by the construction of such railroad ;***.”
The doctrine of the common law, with reference to surface water, is in force in this state. Abbott v. Ry. Co., 83 Mo. 286. Under the petition and the agreed statement of facts the right of the plaintiff to recover is made to depend upon the above act.
The said act does not require the construction, in any case, of ditches or drains in or through the road bed of a railroad. Abbott v. Ry. Co., supra. It requires the construction of ditches or drains by a railroad company, in certain cases, along each side of the road bed of its railroad. But in no case is the construction of such ditches or drains required, except for the purpose of connecting the same-“with ditches, drains or water courses, so as to afford sufficient outlet to drain and carry off the water along such railroad, whenever the draining of such water has been obstructed or rendered necessary by the construction of such railroad.”
Where there are no ditches, drains or water courses, with which to connect ditches and drains that might be connected along the sides of the road bed of the railroad, the railroad company is not required by the statute to construct them.
The agreed statement of facts is to be treated as a special verdict, as we have already said. The said statement should have, therefore, averred every fact essential to the recovery by the plaintiff on the cause of action alleged in the petition. The petition, being based upon *606tlie above statute, tlie agreed statement of facts should have averred that there were ditches, drains or water •courses with which might have been connected ditches .and drains along the sides of the road bed of defendant’s .railroad, had the defendant constructed the same. The failure of said statement to contain said averment was fatal to the plaintiff’s right to recover, and the judgment .•should have been for the defendant upon the said .statement.
The judgment is reversed and the cause is remanded for a new trial, in order that there may be a finding as to whether there were such water courses, ditches or drains. Gage v. Gates, 62 Mo. 416; sect. 776, Rev. Stat.; Laws 1885, p. 219.
All concur.