delivered the opinion of the Court.
This case is before us and is reported in 47 Ill. App. Rep. 4S6. It was then averred in the declaration that defendant maintained an insufficient culvert across the arm of a creek, whereby, during a freshet, the coal slack in the railroad embankment on each side of the culvert was carried off and deposited on plaintiff’s land, to its great damage. There was no averment as to when, or by what corporation the culvert and embankment were constructed, or that defendant was notified to abate the nuisance. A demurrer was interposed to this declaration in the trial court and was there overruled. The record was brought to this court, and we held that under the rule requiring us to construe the pleading against the pleader, we could not assume that defendant created the nuisance by the construction of the culvert and road in the absence of an averment to that effect, and the court below erred in overruling the demurrer, also holding that the liability of a grantee of land with a nuisance upon it, for maintaining the same, only arises after notice to abate it. The judgment "was reversed and the cause remanded to the trial court, where an amended declaration of three counts was filed with proper and sufficient averments to obviate the objections to, and supply the defects in the declaration demurred to. Defendant pleaded the general issue to the amended declaration. The cause was tried by a jury and a verdict returned finding defendant guilty, and assessing plaintiff’s damages at $155. Defendant’s motion for a new trial was overruled, and judgment was entered on the verdict for the damages assessed and costs of suit. Defendant took this appeal.
The amended declaration in substance charged:
First. That on August 1, 1889, the defendant wrongfully constructed an embankment, or fill, of coal slack, about three feet high, and put an insufficient culvert or sluiceway thereunder; that by reason of the said embankment and said culvert, the waters that naturally flowed to that place were stopped, and because of the insufficiency of the culvert, the road bed, culvert, etc., were washed off the right of way on the land of appellee, and the crops and land ruined.
Second. That after the road-bed as aforesaid had been washed away, the defendant wrongfully and negligently repaired and rebuilt its road-bed, embankment or fill, with coal slack, and put an insufiicient culvert thereunder, and thereby the waters were stopped by said embankment, and accumulated and washed away the coal slack, culvert, etc.
Third. That defendant wrongfully maintained an embankment, road-bed or fill, composed of coal slack, with an insufficient culvert or sluiceway thereunder, after the plaintiff had notified the defendant to remove said embankment and culvert, and to properly construct or repair and maintain the same, and after notice and request to abate said nuisance, floods came, and on account of said embankment and said culvert, the waters accumulated and washed away said coal slack and culvert, to the injury of the plaintiff, etc.
An examination of the record satisfies us the proof sustains the verdict. The evidence shows that after defendant had taken the possession and control of said railroad it constructed a portion of the road-bed of coal slack, and under it placed a culvert insufficient to carry off the water in time of a freshet. That it continued to maintain such portion of its road-bed of that material and the culvert in that condition, and thereby the waters that naturally flowed to that place were obstructed and backed up against said road-bed, and on several occasions thereafter, before this suit was commenced, when there were heavy rains and high water, the road-bed ties and rails were washed off and carried out over plaintiff’s land, and after each washout, coal slack in large quantities was again used by defendant in constructing the road-bed anew. The coal slack was carried off and deposited to the depth of several inches upon part of plaintiff’s land, by repeated overflows, and rendered that part of the land unfit for tillage, and thereby damaged plaintiff the full amount recovered.
This damage resulted from the negligence of defendant in constructing and maintaining its embankment of material liable to be washed out and deposited on plaintiff’s land, and a culvert insufficient and inadequate, in violation of the duty imposed by law, independent of any statute. For injuries resulting from the nuisance so created and maintained by defendant, plaintiff had the right to recover damages, without notifying defendant to abate,the nuisance. But it also appears plaintiff did notify defendant’s servant of the injurious consequences resulting from the use of coal slack for its roadbed and demanded that defendant should cease to use it for that purpose, and also informed defendant’s servant of the insufficiency of the culvert and the reasons why it was insufficient. No particular form of notice to abate a nuisance is required, even in a case where notice is necessary to the maintenance of a suit; but it is sufficient if the person continuing the nuisance be so far apprised of the injury done, and the claim for redress, as not to be taken by surprise. Woodam v. Tufts, 9 N. H. 92, cited in appellant’s brief. The second instruction given for plaintiff complained of by appellant’s counsel, was right, and the court did not err in giving it.
FTo error is perceived by us requiring the reversal of the judgment, and it is affirmed.