Or Petition for a Eehearing.
Bicknell, C. C.— The petition states that Lake Headly “is in no sense a running stream, and is without known channel or course on the land on which the appellant’s road is built,” and that “ it is a collection of water supplied by surface water and the overflow of Indian creek.” But the question as to Lake Headly was. fairly submitted to the jury.
The difference between a permanent watercourse and mere surface water was distinctly pointed out by the court below, in its instructions copied in the principal opinion, and the jury were plainly told that they should not return a verdict for the plaintiff unless they should find from the evidence that the so-called Lake Headly was not mere surface water, but was, and had been from time immemorial, a permanent watercourse such as the court in its instructions described.
There was evidence tending to show that Lake Headly was a permanent watercourse, fed by several streams, with a natural channel, which its waters, when high, always took, and *198by which they passed away, so {hat the appellee was able to raise crops on his land for twenty-five years in succession, and that the waters of the lake were not mere surface waters, nor overflow, and that such natural channel was so obstructed by the appellant’s road, built across it, that the waters .of the lake, instead of flowing in their accustomed course, were thrown back upon the appellee’s land to his damage.
A verdict can not be set aside where there is evidence tending to support it, merely because there is a conflict in the testimony. Carmichael v. Cox, 85 Ind. 151.
The petitiou for a rehearing ought to be overruled.
Per Curiam. — The petition for a rehearing is overruled.