On Rehearing.
Bruce, Ch. J.An able and exhaustive reargument has been had in this case, yet we are constrained to adhere to our original holding. The complaint alleges:
“That the defendant company in constructing said embankment through the city of Dickinson, and across said water course and channel of drainage, unnecessarily, carelessly, and negligently entirely filled up and destroyed said water course and channel of drainage, and in the place and stead thereof put through its embankment, part way, a small crooked open ditch and the other part of the way a small iron culvert connecting with said ditch, which said ditch and culvert were entirely insufficient in size and fall to carry off the waters of said water course or storm waters of said drainage -area or basin in times of rain, and were so carelessly and negligently constructed and maintained that it entirely failed to carry off said water; that because of the negligent construction and maintenance of said embankment, the negligent construction and maintenance of said ditch and culvert, and the lack of size, fall, and capacity of said ditch and culvert, on July 28, 1914, storm waters dammed up against said embankment and flowed over and upon the hereinbefore described premises of the plaintiffs, and into said basements:
“That on July 28, 1914, and for a long time prior thereto, the defendant had notice and knowledge of the fact that said embankment entirely destroyed said drainage channel, and that said ditch and culvert were insufficient to carry off the waters' of said drainage basin and channel in times of rain.”
There can be no question that, before the construction of the railroad embankment, the waters of the area in question flowed down to the Hart river through a natural water course, ravine, gully, or natural depression, having a fixed and determined course and which formed the natural and usual channel for the escape of the waters,” and that, *154even if the so-called common-law rule of surface waters had maintained, the upper landowners would have had the right to use such channel. It is also the established law that surface waters having an accustomed flow in a drainage channel or waterway having well-defined banks, may not be stopped by an embankment across the channel so as to divert the waters to the injury of adjoining proprietors. See 40 Cyc. 648; Aldritt v. Fleischauer, 74 Neb. 66, 70 L.R.A. 301, 103 N. W. 1084.
It seems to be well established also, and this, even where the common-law rule applies, that where a railroad crosses a ravine, gully, or natural depression in the earth, which forms the natural and accustomed channel for' the escape of surface waters, it is incumbent upon the company to malee provision for the flowage of the same. See Jungblum v. Minneapolis, N. U. & S. W. R. Co. 70 Minn. 153, 72 N. W. 971; Smith v. Chicago, B. & Q. R. Co. 83 Neb. 387, 119 N. W. 669; Quinn v. Chicago, M. & St. P. R. Co. 23 S. D. 126, 22 L.R.A.(N.S.) 789, 120 N. W. 884; 40 Cyc. 644.
The controversy in the case at bar has been mainly over the question of the size of the culvert. The complaint, however, charges that the defendant carelessly and negligently entirely filled up and destroyed said water course and channel of drainage, and in place thereof put through its embankment, part way, a small crooked open ditch, and the other part of the way a small iron culvert connecting with said ditch; that because of the negligent construction of said embankment, the negligent construction of said ditch and culvert, and the lack of size, fall, and capacity of said ditch and culvert, on July 28, 1914, storm waters dammed up against said embankment, etc.
If, then, the jury were led to believe, and we think there was evidence from which they might form the belief, that after the filling in and erection of the embankment the construction of both the ditch and the culvert in the place of the original water course were not sufficient to carry off the waters of the water course as it originally existed, then they were justified in holding for plaintiff. In this view of the case, even if the culvert was sufficient to carry off the waters which were in the ditch, which was a matter of fact, not more than 30 yards in length, it by no means followed that the ditch and culvert together, as constructed, were adequate for the purpose, and to take the flowage of the *155'■original water course over which in earlier years the railroad company liad constructed a pile bridge.
We realize that the opinion of experts, such as those as in the case before us, should he given great weight. Those experts, however, only testify as to' the adequacy of the culvert when the waters got to it. They did not testify positively as to the adequacy of the whole arrangement, and there is much conflict in relation thereto.