(dissenting.) I am unable to concur in .the foregoing opinion. I believe that the undisputed facts of this case are such that, when we apply thereto the law announced in Thomlpson v. Andrews we must reverse the judgment of the trial court. My colleagues refer to Anderson, Venner, and Boll -cases, and declare the facts in this case substantially in accord with the facts in those cases. In the Anderson case, the decision of this court turned on the fact that the water in question was not “surface water.” In the other two cases, it was sought to conduct the water out of basins into drainage courses, into which water from these basins had never flowed. It is true that, in the Anderson case, we said that permanent waters could not be artificially drained even through a ditch in the natural channel; but we also said that we did not wish to be understood as holding that ponds or sloughs of a temporary nature, could not be drained for purposes of husbandry, or as holding that waters which would naturally seep and flow in a fixed direction could not be hastened in such direction -by a ditching, even if by so doing more water would be discharged on the servient estate than would have been without ditching.
This court will take judicial notice of matters of current history' and of local geographical conditions such as the general conditions of the surface waters of the state during' years past. We must therefore take notice that, for a long period prior to about the year 1913, the amount of surface water in this state *497was materially less than it has been since. It appears that at a former period of abundant surface waters the water ran from the upper slough into the lower through a ditch, and that it is this natural ditch which defendant lowered for the purpose of draining the upper slough; that waters from the-upper slough seeped into the lower one; that, under normal conditions, the sloqgh sought to be drained by defendant was dry, and parts thereof had been cultivated, and also that hay had been cut upon the same.; and that, prior to 1913, plaintiffs had been able to cut hay off their land although they had harvested hay during but three seasons in all, the last being that of 1913, when a part of their hay was covered by ice. There was no evidence from which the trial court could rightfully find that the flow of water from the upper to the lower slough would raise the water in the lower one, or in any way tend to render the lower one of less value to its owners; but there - was evidence that, owing to the sand and gravel found in the banks of the lower slough water there would never rise above a certain heighth. Just as in Thompson v. Andrews, the facts of this case disclose that it is because of the changed seasons that the lower slough is rendered unfit for hay, a condition it has been in ever since 1913.
In Thompson v. Andrews, we said:
“The lower landowner cannot sit back like the 'dog in the manger’ and say to his neighbor: You had no easement under which you had a right to discharge waters from your lands across mine, and I will therefore not permit of such discharge even though it will result in no material damage to me.”
The trial court found that plaintiffs are the widow and minor children of a deceased person, and the owners of but one quarter of land, of which a portion of the lower slough is a part; while the defendant is the owner of much other property than the landi referred to in this action, and is a well-to-do and prosperous farmer. I am at a loss to understand upon what theory it could be held that the above facts, if true, are material; and I am fearful that the trial court, because of his splendid virtues, lost sight of the law through his mistaken sympathy for the widows and orphans.
While the facts of this case bring it in line with the case of Thompson v. Andrews, and the defendant had ¿n easement to *498drain the waters from the one slough into' the other, yet, disregarding that fact and. assuming that no such easement existed, still, when we consider that plaintiffs wholly failed to prove that they would be damaged 'by the draining of the .upper slough, they ■failed to establish any right to the injunction sought.
POLLEY, P. J., concurs with Judge WHITING’S dissent.