(dissenting.) I find it unnecessary to inquire whether the water diverted by defendant was surface water or a stream. That defendant did divert the water, whatever be its character, is admitted. It took control of the water, and directed its course away from the land of plaintiff. Its motive for so doing, doubtless, rested upon benefits, or supposed benefits, which it would receive therefrom. Among these benefits was, doubtless, one regarded of importance, namely, the dispensing with the bridge or trestle-work of perishable materials, and the substitution therefor of the more substantial and safer embankment of earth, which in the end would be cheaper. The act of building the embankment in place of the bridge was inconsistent with the act of again opening it. It was, in effect, a declaration that the bridge was dispensed with, and an invitation -for plaintiffj *701and all other persons, to so act and to so use and control their lands, which would be affected by the change, as their interests demanded. As plaintiff’s land was relieved of water flowing through the bridge, it will be presumed to be beneficial to him, for the reason that all lands, whether cultivated or used for meadow or pasture, of either tame or wild grass, are injured by the overflow of water in excess of the natural rainfall. The law will presume injury from such overflow. Section 1, Phil. Ev., (Cow. & H. & Edw. notes,) 546, marg. p. 656.
But there is direct evidence in the record showing injury which would be sustained by plaintiff from the water. The plaintiff testifies, and the evidence is corroborated by other witnesses, that his lands which would be affected by defendant’s act in opening the embankment would be worth twice as much with defendant’s embankment closed as it would be with it open.
It appears that plaintiff acquiesced in the change in the embankment caused by filling up the space occupied by the bridge, and, as it was to hi's advantage, it will be presumed that he sanctioned and accepted the beneficial act of defendant in filling up the opening originally left in the embankment, — 1 Phil. Ev., (Cow. & H. & Edw. notes,) 505, marg. p. 609, — and it will be presumed that plaintiff used his land affected by the water, and improved it, with reference to the change in the embankment, for the reason that it appears from the record that he is in the occupation and use of the land, and has been since the change. No farmer could cultivate or use land similarly situated without improving it, for its use alone, whether for cultivation or for pasture, would improve it; cultivation and use being a source of great improvement of wet lands, or lands in swales, of the 'character of plaintiff’s land.
It clearly appears that to restore the bridge will result in plaintiff’s injury. Defendant is now estopped to take from plaintiff the benefits and rights it bestowed upon him by *702diverting the water. The facts, as we have just stated them, precisely fill the conditions of an estoppel, as they are tersely and correctly stated by defendant’s counsel. The law will not permit defendant, for its own convenience or profit, to change the course of the water of a stream, or surface water, after having established its coárse, and held out inducements to adjoining owners to believe such a course permanent, and to act accordingly. Such owners would be subject to loss, inconvenience and annoyance, if defendant could, at will, divert the flow of surface water once established by it.
Doubtless the motive of defendant in restoring the bridge, and abandoning the ditch, was to save expense required to sink it deeper, and in securing the embankment from washing, and in protecting the abutments of the bridge at the river. It is not to be doubted that all of this could have been done, but at an expense greater than would have been incurred by removal of the embankment and the reconstruction of the bridge. But these matters should have been considered and weighed before defendant, by the filling up the embankment, conferred rights upon plaintiff. These rights defendant cannot now defeat upon the mere ground that expense will be saved thereby.
In my judgment, the judgment of the district court ought to be affirmed.