dissenting.* (December 29, 1893.)
From the statement of the case in the opinion of Commissioner Ryan it seems to- me there is vital error in the decision. The constitution of Nebraska requires just compensation to be made, to the owner of property taken or damaged for public use. The right to take is unquestioned where there is a necessity for the same, but this right is attended with the correlative one, that compensation must be made to the owner. The theory of the law is that the landowner shall be compensated in money for all direct injuries to the land resulting from the taking, unless the incidental damages are diminished by special benefits. These damages are to be computed 'upon the basis of the proper construction of the railway. (Fremont, E. & M. V. R. Co. v. Whalen, *43211 Neb., 585.) In the case at bar there were no culverts in.the embankment to permit the water to flow in its accustomed course toward the Nemaha river. Had there been,- the damage in this case would not have occurred. This, in my view, was actionable negligence on the part of the company.
The case seems to be decided upon the theory that the railroad company has the right to exclude the water from its own land; but the statement shows that in fact the company diverted the water, turned it into artificial channels, and caused it to empty into Yankee creek, and thereby caused it to overflow and spread over the plaintiff’s land and destroy his crops. Upon what theory can this be justified? Certainly not upon the ground that it was surface water. In Fremont, F. & M. V. R. Co. v. Marley, 25 Neb., 138, this court held that the railroad company had no right to collect surface water in a ditch or drain and permit it to flow upon the land of another without his consent; and the same rule applies to the case at bar. There is no analogy between the case of the owner of land excluding surface water from his premises and that of a railroad company. In the one case, the land-owner merely prevents the water from flowing onto his land; in the other, in the absence of culverts or bridges, a continuous barrier is presented to the flow of water which would thus be dammed upon the land above or thrown in a body upon the land below, in either case causing injury and loss. The projectors of a railway locate a line across a farm on which the surface water has theretofore had a free outlet, so that no injury has resulted from the backing up of the water or from it being collected and thrown in a body upon that farm or the lands below. In constructing the road, however, a solid embankment is made, by which the flow of water is obstructed and thrown in a body upon another part of the same farm or the lands of an adjoining landowner, by means of which his crops are destroyed, and we *433are gravely told that the corporation has a right to do this. In Boyd v. Conklin, 20 N. W. Rep., 595, the supreme court of Michigan held that where surface water had been allowed to flow in a certain direction for more than twenty years, an easement was acquired by prescription. This opinion was approved in Gregory v. Bush, 31 N. W. Rep. [Mich.], 92. In no event can a party, by artificial drains or ditches, collect the surface waters and cast them in a body upon the proprietor below without being liable for the injury. (Livingston v. McDonald, 21 la., 160; Butler v. Peck, 16 O. St., 334; Martin v. Riddle, 26 Pa. St., 415; Pettigrew v. Evansville, 25 Wis., 223; Gregory v. Bush, 31 N. W. Rep. [Mich], 92.) It is very clear to my mind that the railway company must provide sufficient openings in its road to permit the flow of surface water in its accustomed course-and not cast it in a body upon the proprietor below. That system is best which, while protecting the railway company in its just rights, requires it to deal fairly with the persons across whose lands the road is constructed, in order that the public improvement shall not be the means of impoverishing any one. It is very evident that th§ court below erred in its instructions, and the judgment should be reverséd and the cause remanded for a new trial.
The opinion in this case, at the time it was filed, was concurred in by all members of the court. Subsequently the chief justice furnished the reporter the above dissenting opinion.