In the summer of 1904 plaintiffs were the owners of growing crops on land owned by one of plaintiffs, lying in the Missouri river bottom out near the bluffs or hills. Defendant’s right of way is south of this land, between it and the river. Defendant constructed an embankment along the right of way, upon which it laid its track and operated trains. The effect of this embankment was to obstruct the flow of surface water from the hills south over the general surface and through one or more creeks or branches, so that it backed up over plaintiff’s crops and injured them. The trial was before the court without the aid of a jury and resulted in favor of the plaintiffs.
*75There are several objections urged for reversal of the judgment, several of a technical nature. It is first said that plaintiffs have joined in the suit when they were not partners, nor were they joint owners. But no proper objection was taken to the alleged misjoinder and it is now too late. [Crenshaw v. Ullman, 113 Mo. 633, 638.]
It is said by defendant that the water which was obstructed and caused to submerge the land upon which the crops were growing was surface water and that no liability attached to defendant for such obstruction. The case of Abbott v. Railway, 83 Mo. 271, is cited to sustain the contention. The injury out of which that case arose was prior to the adoption of what is now section 1110, Eevised Statutes 1899. That statute makes it the duty of the railway company to construct ditches or drains so as to lead off surface water, which otherwise would be collected by their embankments. A failure to perform such duty is sufficient to sustain an action by a party Avho may be injured by the overflow. [Cox v. Railway, 174 Mo. 588; McFarland v. Railway, 175 Mo. 422.]
It is suggested that the evidence failed to shoAV that the embankment was the real cause of the overflow, and that it failed to show that ditches or drains would have carried it ofí. We however think the eAddence ample to sustain the finding of the court, and so of the contention that the water which caused the injury came from the overflow of a creek or branch in a wet season. It is apparent from parts of the evidence that but for the embankment and failure to properly drain, the injury would not have followed, and such is the effect of the statement of some of the witnesses. We do not agree with defendant’s suggestion that the purpose and object of the statute does not afford a remedy for plaintiff’s grievance. It is manifest that there was ample testimony tending to show that defendant’s embankment caused a holdng back of the flow of the water until it came over plaintiff’s land, and that a compliance with *76the statute would have prevented it. We do not consider the case of Harrelson v. Railway, 151 Mo. 482, as applicable to the facts in this case, upon which plaintiffs depend.
We do not consider the rejecton of a certain profile of the defendant’s right of way, which was offered in evidence, as error. Several plats of the grounds in controversy were introduced, but objection was made to what was denominated “a blue print of the right of way ” of the defendant “showing elevations and construction of right of way.” It was in no way- identified as having, been made of the place in controversy. It was not shown to be of any authenticity, or that it was correct. No offer was made beyond a tender of the paper. It was properly excluded.
It is finally objected that the proof did not show the crops to be upon the land described in the petition. There seems to have been a variance as to a description of a part of the land. The identity of the crops was fully made out and a mere misrecital of part of the numbers of the descripton ought not to work a reversal of the judgment, especially in view of the fact that no proper advantage was taken of the objection. We have gone over all points of objection made and conclude that no error was committed substantially affecting the merits of the action, and judgment is affirmed.
All concur.