Dissenting Opinion.
Cox, J.I understand from the opinion .of the majority of the court that the judgment is reversed on the ground that the trial court’s conclusions of law from the facts found were erroneous. I cannot concur in the reversal on that ground. The theory of appellant’s complaint both for damages and injunction was, as appears from its allegations, that “said dam obstructs the flow of the water in said creek, and flows the same back onto appellant’s land and destroys the crops and grass growing thereon, and backs the water on same in such a manner that it destroys the quality of the soil, whereby appellant has been damaged in the sum of $500”; that, “all the overflow complained of is caused by the maintenance of such dam; that the damage caused by reason of the dam aforesaid is continuous and cannot be adequately compensated for in damages without continuous lawsuits.” Now the court found specially the facts to be that the banks of the creek where appellant’s tile drain entered it were from three to five feet high above the bed of the creek; that the tile drain had a fall of nine feet; that appellee’s dam was in no way responsible for the water which stood on appellant’s land but that the presence of *491the water was wholly due to the obstruction of the tile of appellant’s drain some fifty feet from the outlet. These facts exclude any recovery of damages on account of this standing water and appellant’s complaint asks injunctive relief on no other theory. If it be conceded that the very slightest increase of the water in the stream itself, without material damage, or injury present or prospective, gives cause of action, it could be for nominal damages only without injunctive relief and a judgment will not be reversed for a failure to assess nominal damages.
Note. — Reported in 104 N. E. 849, 850. As to right of one landowner to accelerate or diminish flow of water to or from land of another, see 85 Am. St. 707. As to the liability for damming back water of stream, see 59 L. R. A. 817.