This action was instituted to recover damages from defendant for overruling plaintiff’s farming lands. The judgment in the trial court was for the defendant and plaintiff appealed.
It appears that plaintiff’s deceased husband owned a large tract of land in Boone county in the Missouri river bottom and that defendant constructed its railroad over*such lands in an east and west course by raising an embankment upon which it laid its ties and rails, and that at certain places it constructed culverts under its track in order to let the water, from the bluffs on the north, flow towards the river in certain natural drains or creeks; through these culverts. But that by reason of the construction of its roadbed the water was so obstructed in its natural flow that it became necessary to construct ditches or drains, leading to natural drains or creeks whereby the water would have been led off in such way as not to injure the lands.
Afterwards plaintiff’s husband died, and she was left a life estate in the lands, and she rented to tenants, agreeing to deduct from the rent whatever damages to crops by water resulted from defendant’s improper maintenance of its track, culverts and drains. That there were overflows which did damage to her tenants, for which she was compelled to make allowance, she being damaged in the amount of such allowance, for which she brought this action.
*185It further appears that in the lifetime of plaintiff’s deceased husband, he resided on that part of the land lying north of the track and that there was complaint by him of injury from the flow of the water and that thereupon defendant sent its section foreman, with men, to remedy the trouble by the construction of ditches. That plaintiff’s husband and defendant’s foreman differed as to how and where the ditches should be constructed and thereupon the work was done as plaintiff’s husband contended it should be and he executed a written paper waiving any damage which should thereafter occur.
The foregoing is a sufficient general statement to make clear the point raised by plaintiff as a ground for reversal of the judgment. Defendant’s answer was a general denial, and when he proposed to prove the foregoing waiver by plaintiff’s husband, she objected on the ground that it should have been pleaded. The objection was overruled. We think the ruling was erroneous. [Bray v. Marshall, 75 Mo. 327; Tyler v. Tyler, 78 Mo. App. 240.]
Defendant insists that as the cause was tried before the court without a jury that no harm resulted. We cannot allow this; for it appears that plaintiff not only objected before the evidence was admitted, when the court stated the objection would be “overruled for the present,” but she afterwards moved to strike out the evidence and she was again overruled and finally. We therefore must assume that the evidence had influence on the court’s finding, and remand the cause for another trial.
As to other errors complained of, we will say that before the map of the grounds spoken of is introduced in evidence, it should be identified and doubtless will be on another trial.
We think, as it is stated by plaintiff’s counsel, the construction of the flow of the water by the building of the railroad made it obligatory upon the defendant, *186if practicable, to construct a ditch on the north side of its roadbed to carry off the water that accumulated there. [See. 3150, R. S. 1909; Williamson v. Railroad, 115 Mo. App. 72.] The issue is as to the difference between the conditions as they existed at the time of the overflows and what they would have been with proper ditches and drains .along the north side of the track, and not the difference between the conditions at the time of the overflows and what they would have been if no railroad had ever been built.
The judgment should be reversed and the cause remanded.
All concur.