(dissenting). As I have always considered and still consider the settled law to be in this state, the opinion of the court in this case has destroyed the rule. Judge Campbell, speaking for this court in Alcorn v. Sadler, 66 Miss. 229, 5 So. 695, had this to say:
“He may arrest its flow over his land and divert it before it gets to rest in the reservoir or lake or whatever the body of water may be called, but after it loses its casual and vagrant character as surface water diffused over his land, and reaches the place of rest and becomes a body or collection of water, owned chiefly by another, he cannot lawfully drain it and destroy what belongs to that other in order to clear of water that part of his own land covered by it.”
*185The last pronouncement of this court upon the Mississippi rule was made one year ago in Harvey v. Railroad Co., 111 Miss. 838, 72 So. 274, in these words:
“By the recognized law of this state surface water may be appropriated to his own use by the landowner, or he may expel it from his land. ‘Surface water is. regarded as a common enemy, which every proprietor may fight or get rid of as best he may; but a landowner has no right to rid his land of surface water by collecting it in artificial channels and discharging it through or upon the land of an adjoining proprietor/ G-ould on Waters (3 Ed.), sec. 271.”
The opinion of the court cites several cases decided by this court to support its decision, which I will briefly review. The first case cited is Railroad Co. v. Miller, 68 Miss. 760, 10 So. 61. In passing it will be noted that the court in the case cited expressly approves the rule announced in Harvey v. Railroad Co., supra, but aside from the fact that this case involved the diversion of natural water courses, the gist of the decision may be found in this paragraph:
“The defendant has, for the protection of its roadbed, dug a ditch along its eastern line, into which is collected surface water, falling upon adjacent lands for a half mile along the ditch, and which but for the ditch would have flowed upon lands of other persons, and has discharged the water thus accumulated upon the lands of the plaintiff, which were free from the flow of the water in its natural course. Upon all the authorities this is an unlawful act, and for it the plaintiff is entitled to recover.”
It is difficult to find in the ease just discussed any authority for the holding of the majority in-the present case. The next case cited by the court is Sinai v. Railroad Co., 71 Miss. 547, 14 So. 87. Judge Woods, after-stating the facts, opens his opinion with these words:
*186“The question presented is resolvable by the application of common-law principles to new and changed conditions. At the ancient common law every landowner fought and fenced against surface water as suited his necessities. It was a common enemy, which the landowner dealt with according to his own pleasure, for his ■own protection. But this strict rule had its origin when the soil was used for agricultural purposes. In that primeval day of the law’s birth and growth, a railway ■corporation . . was undreamed of.”
So it was in that case the court wisely, I think, modified the rule to fit unforeseen and undreamed-of conditions. It was an adjustment of the law to a “new order of society.” This case left undisputed the gen-oral rule — the common-law rule which had theretofore heen applied to the known conditions. But the court ■•applies to this case the maxim that each person must so use his own property as not to do unnecessary harm to another.
. In the present case we have nothing new; the situation here is the same everywhere in the rolling lands of the state, and the effect of the decision is to totally destroy the rule — -to make the lower estate the servient ■estate. In other words, the maxim is made much more potent than the rule of law heretofore recognized by the courts of this state, and if the decision of the court is to be the law, the civil law with regard to surface ■waters will hereafter prevail, for it is difficult to imagine a case wherein to fight surface water would not be •denied, upon the theory of injury to the upper proprietor. I confess, in the light of the ruling of this ■court in the present case, that I have never understood the Sinai Case. The court, in that case, as I have airways understood, was undertaking to uphold the common-law rule with such limitations as the unique conditions manifestly demanded. It will be noted, however, that the railroad company was held liable in that case, ‘but not the appellee in this case, who did a similar act; *187that is to say, he has maintained his right to dump the surface water flowing' from and over his lands onto the lower lands, and the lower owner is enjoined from making a fight against the enemy. Stated differently, in the Sinai Case the railroad company was held liable for misusing the surface waters, and the appellee here is accorded the right and power to prevent the appellant from raising her hand in defense clearly because her land is somewhat lower than the dominant estate— ■a reversal of the rule heretofore applied in this state. In the present case Mrs. Holman is required, by the decree of this court, to bear the expense of taking care of the surface water flowing over and off Mr. Richardson’s lot, while it would not cost Richardson any more to do so than it will cost Mrs. Holman. ■
This decree can only be defended upon the civil law theory that the upper estate is the dominant estate and the lower estate is the servient estate; a reversal of the Mississippi rule, as I understand it. The next case cited by the court for its opinion is Railroad Co. v. Smith, 72 Miss. 677, 17 So. 78, 27 L. R. A. 762, 48 Am. St. Rep. 579. This is another railroad case, and deals with flowing streams and the overflow waters of same, and, this "being true, it has no application to the present case for the reasons mentioned above. But the Smith Case needs no interpretation, and we will quote from the ■opinion therein a statement of the conditions then under consideration, viz.:
In Sinai v. Railroad Co., supra, we declared that the supposed rule of the common law, under which it was there claimed that each proprietor had the absolute right •of excluding surface water from his premises, regardless of any injury to an adjoining proprietor, could not "be invoked (if it in fact existed) by a railroad company ■asserting a right to submerge hundreds of acres of adjoining land with surface water by its embankment. It Is apparent that a rule intended to regulate the correlative rights of adjoining landowners whose property *188is devoted to agriculture or residence purposes could not be applied to the same extent, either in favor or against a railroad company owning a strip of land one hundred; feet wide and hundreds of miles long.”
Again, the majority opinion cites Railroad Co. v. Davis, 73 Miss. 678, 19 So. 487, 32 L. R. A. 262, 55 Am. St. Rep. 562. I do not think this case has the remotest application to the present case. It was held in that case that the company had presumably paid for all damages-flowing from the proper construction of the road, in the eminent domain proceedings, and that the company was under no duty to so construct its roadbed as' to provide against all except unprecedented overflows. The Daniels Case, 108 Miss. 68, 66 So. 324, did not involve the questions here discussed, and this manifestly appears from a reading of the opinion, and this is true of Railroad Co. v. Paine, 19 So. 199.
Having discussed all the cases cited in the majority opinion, and believing that not one of these cases afford any authority for the holding of the court, I will add a word about the case decided. The court has stated the ease most favorably for Mr. Richardson, not more so than the evidence offered by him warrants, and in my opinion the statement does not entitle him to' the relief accorded him.
Having the utmost respect for the learning and ability of the members of the court concurring in the opinion, I nevertheless believe that they have entirely misconceived the principles announced in the cases relied on» These were all railroad cases, and in all of them this-court was at pains to explain that they were exceptional cases and called for a modified rule; an equitable and' just rule to meet modern conditions. Of course, there was no thought of applying one rule to a railroad corporation and a different rule to private persons similarly situated, for the obvious reason that private persons, unless they engage in the business of building and operating commercial railroads, can never find themselves in *189"the same situation. The railroad cases are in a class to themselves, because they bring about conditions unlike other classes of landowners.
I concur in the judgment of the court reversing the -decree of the chancellor, hut dissent from the rules of law announced in the opinion.
This change in the common law of the state is a legislative function, and if I correctly interpret the rules of law controlling this case, the court has assumed the role of legislators, which, in my opinion, is always dangerous, and in this case of doubtful wisdom, to put it mildly.