(specially concurring). I agree in the result reached by the court, that is, the order reversing and remanding the cause. I do not concur in the reason-of the majority in the opinion this day delivered on the-suggestion of error. I agree with Judge Cook in the-interpretation which he has placed upon previous decisions of this court, and, in the main, I agree with the views expressed in his concurring opinion. It is perfectly manifest to me that the process of reasoning iir the majority opinion completely changes the law of waters in Mississippi and substitutes a rule that has-never before been recognized in this state. I think the eourt should at least declare in express language that previous holdings of our court are overruled.
Much importance is given by the court to the maxim that one must so use him own as not unnecessarily to injure another’s. This might be termed the “golden rule” which the law applies to the every day affairs of men. I fully recognize this broad principle of .justice, but the principle is erroneously applied in the instant case. As applied to the present case it is made to say that Mrs. Holman, as the owner of the lower estate,, must receive and at her own expense dispose of the surface water flowing from the upper estate, simply and' solely because she, at a reasonable expense, can drain-off or dispose of these surface waters. The record shows-conclusively that Mr. Richardson, as the owner of the upper estate, can ditch and drain off his own surface waters at a reasonable expense. The majority say that the obligation must be borne by Mrs. Holman, the owner of the lower estate. I say that the obligation is the primary obligation of Mr. Richardson, the owner of the upper estate. I fail to see the justice of permitting a well-to-do landlord to install a system of underground tiling and by means thereof to concentrate at one point and project surface water upon the humble garden spot of a helpless widow. Yet this is the very action which the *183court now approves. It would not be so bad if Mr. Richardson did not have a system of underground tiling. In that case the surface water would be diffused over a larger area and would run onto the premises'of Mrs. Holman in a manner less calculated to do so much damage.. As it is, the proof shows that the surface waters from the large premises of Mr. Richardson are collected into-one large pipe and through the mouth of this pipe projected into a ditch leading through Mrs. Holman’s-premises. The result of this is that the garden of appellant is frequently overflowed to the extent that a large part thereof cannot be utilized. Mrs. Holman then, is the one who is “unnecessarily injured” under the maxim applied by the majority. I have always been taught that a landowner has complete dominion over his-own so long as he does not unnecessarily injure another. Mrs. Holman has done nothing to injure Mr. Richardson’s premises. She is simply arranging her own premises so that they may be utilized. What she does is in. the interest of good husbandry. There is no complaint,, that she does not take care of her own surface water. The sole complaint is that she ought to take care not' only of her own surface water, but of the surface water which.falls upon Mr. Richardson’s estate. She then is-having a double burden imposed upon her, while Mr. Richardson escapes all burden whatever. This manifectly reverses the rule heretofore existing in Mississippi. If Mr. Richardson could not possibly provide-ditches and drains for his own land, the case might be different. It is not, however, an instance where the upper tenant cannot possibly take care of his own excess surface water without imposing upon the lower estate. He. can provide his own drainage and that across his-own land. This, in equity and good conscience, he ought to do. Our court made an exception in the application of the law against railroad companies. The reason for this was clearly announced by our court in the Sinai *184Case. The very charter rights of railroad companies •empower them to appropriate a narrow strip of country across large stretches of agricultural lands and to construct thereon miles of embankments, which necessarily obstruct natural drainage. Of course, the present case ■does not fall within the exception. The majority opinion declares that:
“The owner of the lower lot may fend the water therefrom, provided he does so for proper objects and exercises reasonable care to prevent unnecessary injury to the higher lot.”
There is little consolation in this statement of the •court when it is followed by the express holding that the lower tenant must pay the expense. Of course, the lower tenant can always fend off the water by appropriating his own land for necessary ditches and paying all the expense himself. If this is a natural right it is a very costly one.
There is neither claim nor showing that the curb or wall being constructed by Mrs. Holman is a “spite wall.” Her attempt to improve her property should be encouraged.