delivered the opinion of the court.
Appellee is the owner of a certain tract of land situated a short distance south of the line of appellant’s railroad in Greene county. He filed his declaration, alleging that the railroad was so constructed as that its embankment interfered with the natural course of a stream or streams known, as “open bay branches,” whereby the water was caused in times of freshets to back up and overflow plaintiff’s land. The first count of the *304declaration sought recovery of actual damages, and the second count, by proper averments made a case for punitive damages. The railroad company filed a special plea, averring that the embankment did not obstruct the course of any natural stream or water course, but served only to interfere with the drainage of rain water across plaintiff’s land. Plaintiff did not demur to this plea, or in any way question its sufficiency in law, but filed a replication, denying the truth of the plea, and reasserting that the embankment did “stop up a natural stream of water.” It will thus be seen that the issue before the jury, so far as the pleadings can determine the issue, was whether the damage resulted from the obstruction of a water course or from an interference with ordinary surface drainage. Much testimony was heard; the plaintiff’s evidence going to show that the “open bay branches” were natural water courses flowing in channels fairly well defined, and the evidence for the defendant tending in some degree to show the contrary. The instructions asked and given for the plaintiff, except perhaps the seventh, recognized that the plaintiff’s recovery depended upon his showing that a natural water course had been obstructed, as these instructions clearly, and as we think correctly, predicted the right to recovery upon this theory. Upon defendant’s theory of the case, in support of which there was some testimony, the defendant asked a number of instructions, all of which were refused, and the jury was in effect charged that the only escape for the railroad company was to show that the construction of the embankment did not cause the injury, entirely ignoring the point as to surface drainage. The twenty-seventh charge, to illustrate, was refused; that charge reading: “The court instructs the jury that if the roadbed of the defendant railroad company, upon which it constructed the fill which the plaintiff claims obstructed the water, was upon the lands of the defendant company, and the. obstruction of water was merely the surface drainage of rain water, and not a regular stream or drain, then the jury must find a verdiet for the defendant.”
Upon the issue made by the pleadings, this error is apparent. *305It is said, however, that, independent of the pleadings, it is ithe law that, if a railroad company by the construction of an -embankment collects surface water so as to cause overflow and damage, the liability is the same as if a natural stream is obstructed, and that a recovery was proper upon either theory; that if the declaration was for the obstruction of a water course, while the proof showed an interference with ordinary surface drainage, at the most there was but a variance, which was rvaived by the failure of the defendant to object to the testimony or to ask for a peremptory instruction on this ground. Thera might be some force in this argument if the testimony was in harmony as to the character of the water; but a variance could not have been suggested in the court below in the light of plaintiff’s testimony that the “open bay branches” in fact constituted one or more water courses floAving in well-defined, or at least regular, channels. There was manifestly no variance if plaintiff’s testimony was to be credited. There is 'no escape from the conclusion that the pleadings, the proof, and the charges for the plaintiff made one case, and the court, by refusing defendant’s charges, made another. Nor is it true that the railroad company must respond in damages in every case where a necessary railroad embankment results in injury to land by interfering with natural drainage. The true rule on the subject is stated with precise accuracy in Sinai v. Louisville, New Orleans & Texas R. Co., 71 Miss. 547, 14 South. 87. That case modifies the doctrine of the common law as to surface water only to this extent: That if the railroad company can prevent the injury without substantial additional inconvenience, expense, and danger, then it should do so. If this plaintiff expects to concede that the embankment does not obstruct any natural water course, he must bear this principle in mindy and be prepared to meet the issue as to whether the road could have, been constructed otherwise with equal economy and safety. On the trial of this case, it may be remarked, the testimony was all the other way.
It is insisted that this view as to surface water cannot be *306reconciled with the case of Railroad Company v. Miller, 68 Miss. 760, 10 South. 61. But that was a case in which the railroad company had constructed a ditch half a mile long, in which surface water was collected and afterwards discharged upon plaintiff’s land, and is therefore akin to the case of Railroad Co. v. Lackey, 72 Miss. 881, 16 South. 909. Of course, the company cannot collect waters, and by an artificial channel pour them upon adjacent land's. This is altogether different from the incidental damage which will in many cases follow the construction of a railroad embankment over a swampy piece of land. The principles applicable in the case of obstructed surface drainage, and that alone, are set out in the Sinai case, supra, and the cases of Railroad Co. v. Davis, 73 Miss. 678, 19 South. 487, and Railroad Co. v. Wilbourn, 74 Miss. 284, 21 South. 1. Of course, these authorities have no reference to interference with natural water courses, and, had the instructions been in accordance with the declaration and pleas, we would doubtless have reached a different conclusion.
Reversed and remanded.