delivered the opinion of the court.
Appellee, as plaintiff in the court below, instituted this action for damages against appellant, averring that by the improper construction and maintenance of appellant’s roadbed the-crops attempted to be raised by appellee on certain lands in Bolivar county were flooded and destroyed in the years 1910 and 1911. Appellee was lessee for the years 1910, 1911, and 1912. of a certain plantation through which the roadbed of appellant’s railroad runs. To the east of the roadbed on the lands leased by appellee and to the north of these lands the natural slope of the land is to the southwest. The water that falls on the watershed east of the railroad flows in a southwesterly course. The railroad company, in the original construction of the roadbed provided a trestle or.opening one hundred and twenty-seven feet long* through which the water flowed in its natural course from the lands east of the* track to* the southwest. There was a natural depression at the point where the trestle* was provided. Appellee contends, and the proof shows,, that since the construction of the roadbed appellant has-used in the constant repair and maintenance of the roadbed a great deal of gravel, which has fallen and washed to the ground under the trestle, and this accumulation of gravel, with dirt and other debris, raised the elevation of the ground under the trestle to an amount variously. estimated from twelve inches to several feet, and this, accumulation obstructed the natural flow of water from appellee’s lands from east to west, and as a consequence the water is impounded and caused to overflow one hundred and twenty acres of appellee’s lands. Part of the plantation involved lies west of the railroad, and appellee, in an effort to drain his lands, dug a ditch through that portion lying west of the track; but he contends that the water impounded on the east mil not drain through the ditch because of its inability to pass over or through the right of way of appellant. It is shown *447that the section foreman, in an effort to relieve the situation, dug a small ditch under the trestle, hut in so doing struck one of the mud sills which had been placed there in the original construction of the trestle, and which had become gradually covered or buried some fourteen inches under the surface with the accumulation of dirt and gravel. There was evidence that the ditch provided by the section foreman was inadequate, and that even it had become filled up. There is ample evidence that the railroad company, in tfie upkeep of its roadbed, has piled gravel on the track, and that a good deal of this gravel rolled off and gradually filled the ditches left on either side of the tracks higher than the surface of the natural ground.
The court instructed the jury for appellant that there was no testimony showing improper construction of the roadbed, and that the jury could not assess any damages based upon improper construction. The main contention of appellant is that the court should have given it a peremptory instruction.
On the question of liability of appellant for obstructing the natural flow of surface water, there can be no distinction between improper construction of the roadbed in the outset and the improper maintenance of that same roadbed after construction. The principle, therefore, announced by this court in Sinai v. Louisville, etc., R. R. Co., 71 Miss. 547, 14 So. 87, Thompson v. Railroad Co., 104 Miss. 651, 61 So. 596, and Y. & M. V. R. R. Co. v. Sultan, 63 So. 672, 49 L. R. A. (N. S.) 760, applies with equal force to the instant case. In the original construction of the roadbed across these lands appellant found it necessary and proper to leave this long trestle through which the water naturally flowed, but the, proof shows that the gravel transported and deposited by appellant along and on its roadbed has materially contributed toward the gradual filling up of the ditches and opening originally left, and that now the surface of the ground immediately under the track has been raised to a point *448materially higher than the surface of the ground east or west of the right of way, and it is this elevation, caused by the gradual mixture of gravel, weeds, brush and dirt which impounded the water on the lands leased by appellee, and which, according to the proof, destroyed his planted crops for the years 1910’ and 1911. There was sufficient evidence to sustain liability.
' We have examined the instructions complained of, and find no reversible error. The contention seems to have been made by appellant all along, and the idea is stressed in some of the refused instructions asked by appellant, that the railroad company is not liable for anything washed on the right of way by the rains, or for the natural increase or elevation. It is the duty of the railroad company, however, not only properly to construct, but properly to maintain, the roadbed with sufficient openings to permit the flow of surface water under circumstances disclosed by the case at bar.
Affirmed.