This action was instituted by plaintiffs to restrain the defendant from constructing and maintaining a certain ditch between two sloughs, one on the land of plaintiffs and the other on the land of defendant. Findings and judgment were in favor of plaintiffs, and defendant appeals.
At the conclusion of the trial, the appellant, among others, requested, and the court refused to make, certain findings of fact substantially as follows: That said ditch was constructed along the natural course of drainage from said upper to said lower slough, and that water had been known to flow from said upper to said lower slough along the line of said ditch; that said ditch was cpnstructed along and was a deepening- of a natural ravine or cut in the bank of said upper slough. To which refusal appellant excepted.
The court, among others, made substantially the following-findings : That on the lands heretofore described as belonging* to the defendant and extending upon other lands there was and is a large slough or lake bed covering approximately 70 acres of land; that said slough is usually filled with water from 2 to 5 feet deep; that at the time of the commencement of this action the water thereon was approximately 1 to 4 feet deep; that said slough bed received the water from a large watershed, covering several hundred acres of land, draining into said slough for a distance of 2 to 3 miles; that in the springtime from snows and heavy rains surface waters accumulate and gather in said slough; that at the time of the commencement of this action there was and now is on the lands of respondent a depression or piece of low land not to exceed 30 acres in extent, usually fit for hay or meadow; that in ordinary seasons said slough bed or hay meadow *495is dry; that said slough bed extends from the said lands of respondent to and upon the lands of appellant; that the said slough bed, most of which is on the lands of respondent, is 8 to io feet lower than the bed of the larger slough on the lands of appellant; that the watershed or territory naturally draining into said hay meadow, or smaller slough, on the lands of respondents is small, covering not to exceed one-half section of land; that between the large slough on the lands of ■ defendant and the smaller slough bed, and on the lands of appellant, there is a natural hill or embankment front 8 to io feet higher than the bed of the larger slough on appellant’s land, and which hill or embankment is from 25 to 30 rods in width; that under natural and normal conditions the waters from the lake bed on appellant’s land cannot and do not run to and upon the hay meadow on respondents’ land; that in the month of November, 1917, appellant dug and excavated a ditch through said barrier or hill between said sloughs, and at the time of the commencement of this action had completed and perfected said ditch; that the same was from; 6 to 8 feet deep, and and approximately 4 feet wide at the top, and that upon the completion of said ditch appellant opened the same into the slough on his land, and that the water then and there began to run out of said slough on appellant’s land through said ditch, a distance of approximately 30 rods, to and upon the said meadow of respondents, and that at the time of the commencement of this action the said waters were flowing upon and inundating the said lands of respondents.
It appears from the record that the said' slough bed situated upon the lands of respondents is surrounded by high banks, and that additional water thrown thereon into said slough do not and cannot escape therefrom and spread our or pass over other lands.
We have carefully examined the evidence preserved in the record, and are of the view that the same is sufficient to support the findings of the trial court. We are also of the opinion that the evidence sustains the conclusion that there is not, and never was, any natural water course between the two sloughs in question, and that appellant had no legal right to cut the natural embankment between said sloughs with a, ditch, thereby permitting the waters from the said slough upon the lands of appellant to *496escape and flow to and upon the lands of respondent, to his continuing injury and damage.
The facts in this case, as found by the trial court, are not within the reason of the rule announced in Thompson v. Andrews, 39 S. D. 477, 165 N. W. 9. The facts of this case are substantially in accord with those in Venner v. Olson, 40 S. D. 585, 168 N. W. 740, Anderson v. Drake, 24 S. D. 216, 123 N. W. 673, 27 L. R. A. (N. S.) 250, and Boll v. Ostroot, 25 S. D. 513, 127 N. W. 577.
The fact that the larger slough on appellant’s land is crossed by a highway grade or embankment is wholly immaterial so far as any 'of the issues of this case are concerned.
Finding no error in the record, the judgment and order appealed from- are affirmed.