concurring.
I think that the judgment of the trial court ought to. be reversed, but I do not concur in the principal statements and definitions in the opinion.
The first paragraph of the syllabus says: “Overflow waters of a stream which have spread over the adjoining country, whence they disappear only by evaporation or percolation, may be defended against as surface waters.” The opinion shows beyond question that the wáter complained of is overflow waters of the stream, that they have spread out over the adjoining country and they disappear only by evaporation or percolation. If the statement of the law in the syllabus is correct, then they are surface waters. -
The principal question in the case seems to be whether the Water complained of is surface water or is a stream of water as it was before it escaped from the principal watercourse. Surface water is a common enemy and may be defended against as such. A stream of water is a common friend and cannot be interfered with to the injury of others. To* distinguish between these two the law calls one surface water, and has adopted a technical name for the other which is a little unfortunate. It is called “flood water.” Now, surface water is generally a flood of water as the term flood is commonly used and understood. The word “flood” is defined in Webster’s New International Dictionary as: “A great flow of water; a body of moving water; * * * especially, a body of water rising, swelling, and overfloAving land not usually thus covered.”
It seems that the court and also the plaintiff in the trial of the case used the word “flood” indiscriminately, sometimes in its technical sense of “flood water,” that is, a stream of water, and sometimes as expressing a volume of water. This led to a considerable confusion which it seems to me is perpetuated in the opinion of the court. In the briefs the plaintiff concedes that this water complained of is surface water. The brief states two propositions relied upon to support the judgment: One is that the defendant improperly constructed its bridges and croAvded *84the water out of the banks of the creek. The other is: “Where a railroad company in the construction of its railroad crosses a natural channel or waterway through which storm or surface waters have been accustomed to flow, it is negligence upon the part of the company to construct its embankment in such manner as to obstruct or dam the natural waterway and thereby occasion damage upon the lands of others.”
The opinion says that the water complained of “varied in width from a few rods where it left the stream to a half mile, farther southeast.” It “followed a wide and shallow depression in the nearly level land.” It varies in depth “from a few inches at the edges to three feet. The petition speaks about this water finally, after two miles overflowing this country, entering into a lake, but the opinion shows that the petition does not mention any lake, but alleges that the waters seek their outlet “toward the Missouri river, into which the waters of Omaha creek naturally flow,” without alleging that it ever reaches any river. Some of the witnesses speak of the depression where this water, after flowing over the country for about two miles, is finally absorbed or evaporated, and one or two witnesses called it “the old Blyburg lake bed,” but none of them testifies that there is anything like a lake there. Evidently some of this water gets as far as that depression (if the overflow is sufficiently large, which seldom happens) and is absorbed. The trial court found “that the defendant was negligent in its construction of its embankment and its bridges over and across Omaha creek as alleged and set forth in plaintiff’s petition, thereby causing the flood waters of Omaha creek to flow back over and across the lands described in plaintiff’s petition.” The majority opinion finds that this is not true. The plaintiff’s petition alleged that the defendant “negligently constructed their bridges, by using piles in such a manner that the piles, which support the bridge structure proper, obstruct the free flow of the water in the channel of said creek and catch and hold debris which further retards and obstructs the flow of wa*85ter, and that by reason thereof the water which would otherwise flow through said channel is crowding out of the channel above and flows over the land on the west side of the defendant’s said line of railway, and that when said water is so crowded out of said creek channel by said bridges it flows down, through, over, and across and onto lands in said section 1 and the other lands in said township twenty-seven (27), range eight (8), and in township twenty-eight (28), in said range eight (8), which were farmed and cropped by this plaintiff.”
It does not plainly appear from the evidence and the facts or the findings of the court that either the plaintiff or the judge considered this water as a stream or any part of a watercourse. The word “flood” is used sometimes, but apparently in .the sense that there is a big body of water spreading over the land, in some places a half mile wide, and, as I said before, the plaintiff in his brief expressly predicates his case upon the proposition that this water is surface water, and the plaintiff insists that in the answer of the defendant “the existence of the flood was admitted.” The majority opinion appears to hold that the water complained of is “flood water” in the technical sense. I do not think that the pleadings and evidence in the case will justify such a finding.
Plaintiff has failed to prove the damages allowed by the court, and for that reason the judgment is properly reversed.