concurring in part, and dissenting in part.
I agree with the conclusion that the plaintiffs are not entitled to recover for the alleged permanent injury to the laud in question, upon the ground that they are not the owners of the fee and were not at the time of the overflow, and that for that reason the judgment should be reversed, at least, in part. Doubtless for prudential reasons, the cause was submitted to the jury in two separate parts; one, to find the extent of the injury to the land, and the other, to find the amount of damages suffered by the injury to and destruction of the growing crops. The jury found that the damage to the land amounted to $1,200, and to the growing crops, $1,839. The land was used for market gardening, and the various crops growing thereon were of great value, and that groAving on the greater part was wholly destroyed. If the embankment constructed by defendants was negligently made and was the cause of the overflow'', there can be no doubt of plaintiffs’ right to recover to the extent of the injury to the growing crops, and the fact that the jury made a finding as to the extent of that damage, separate from the injury to the land, would permit the judgment to be affirmed for $1,839. This being true, the questions as to the proper construction of the embankment and as to the cause of the increased overflow became largely questions of fact to be solved by the trial jury. It is conceded that the valley of Middle creek was subject to occasional overfloAVS, and at such times the Avater spread out over the Ami ley to a greater or less depth, but at no time to the depth attained on the occasion named, and Avith such injurious effects as in the instance referred to in this record. There is evidence that the water was forced upon plaintiffs’ possessions to such an extent as not only to destroy the growing gardens, but to remove the soil in places and deposit it in ..others, thereby destroying all and rendering the ground in no condition for replanting or resetting.
There is also evidence that the construction or rhe em*765bankment, which extended from a distance above plaintiffs’ field to far below it, without any opening or other provision whereby the flood-waters could spread out over the valley as upon previous occasions, had the effect of forcing all the flood upon the one side of the valley where plaintiffs’ land is located, and greatly increased the volume and destructiveness of the flow. I think this evidence was sufficient to justify the submission of these facts to the jury, and with their finding thereon we should be content.
It is my opinion that the judgment should be affirmed for the $1,839, upon condition that plaintiffs remit the $1,200 as of date of the judgment, and that the costs of the appeal be taxed to them.