On Petition por a Behearing.
Bicknell, C. C. —The appellee now contends that the allegation of negligence made in its complaint was mere surplusage and amounted to nothing, and that, therefore, an *395averment of want of contributory fault was not required. But, without the allegation of negligence, the complaint would have been clearly bad.
Filed March 12, 1885.If my neighbor puts a common rail fence across a stream on the line of his land, and a great flood comes, which, at first, is resisted by the fence, but afterwards carries the fence away, and flows upon my land below, and washes away my fence, I have no cause of action for that damage. A man has a right to thus fence in his own land. Such a case falls within the maxim, “Actus Dei nemini facit injuriam.”
There is no difference in this respect between a barbed wire fence and common rail fence. If, however, a man builds his fence so negligently and carelessly, that by reason of such negligence and want of care his neighbor is injured, a cause •of action may arise for the negligence, the negligence will then be the material averment, and the Indiana rule will be equally applicable whether the injured party be a natural person or a corporation.
The claim of the appellee in this petition is substantially that, whenever a man’s barbed wire fence is washed away by a flood, he is liable for the damage done by the flood to his neighbor below. Such a proposition can not be sustained.
The petition for a rehearing ought to be overruled.
Per Curiam. — The petition is overruled.