(dissenting).
I am unable to concur with my Brethren of the majority, and, believing this case to be one of the most *331important and far-reaching decisions rendered by this court in recent years, I desire to state my views of the issues presented and the law bearing’ thereon.
The chancellor in his opinion says:
“The gravamen of the complaint being: First. That the lands along Coldwater river are higher than the adjacent lands within the drainage district and have never been subject to overflow, and since the construction of the levee that the flood waters of Coldwater river during times of excessive rainis have been confined and caused to flow over their lands, subjecting it to inundation, and that the levees thus confining the flood waters of Coldwater river damage their land. The second ground of complaint is that David bayou, Pompey bayou, Open Mouth lead, and other small streams flowed into Coldwater river, and that the district levees have been constructed across these bayous, and have dammed and prevented the flow of the waters to and from Coldwater river through these bayous into the lowlands, and forced them upon the lands of complainants. . . .
“No effort has been made on the part.of the district to compensate these landowners complaining here, and who are not in the bounds of the district; indeed the legislature did not seem to have in contemplation this item of damage. The manifest purpose of the construction of these levees across these bayouis was to prevent the flow of flood water upon the lands included in and incorporated in the district.
“These bayous are streams through which flow waters into the river from the lands in the district in normal times. In flood times the flow of the water is reverted, and the water flows through these bayous into the drainage district, and thus diminishes the volume and pressure of the water in the channel of Coldwater river.
“These bayous complained of are described as being depressions in the ground, with well-defined banks, water flowed to the river in the winter and rainy season and *332dry in the summer time, with a width varying from twenty-five to ninety feet and depth from two to ten feet. This is especially true of the bayous denominated Forked Lake lead and Open. Mouth lead, at the points at which the dam was broken by the overflow water, and the main object of the bill seems to be to prevent by in- _ junction the repairing of the broken places in the levee by the district across these bayous. .... .
“In the case I am now considering, it is clear that the drainage district had never exercised the right of eminent domain. It is clear that' there is and will be irreparable damage to the lands between the east bank of the river and the levee constructed by the drainage district; that this damage will be recurrent and continuous. The defendants concede that there is a constantly recurring damage, and they argued the case solely upon the proposition that, the district having a right to build a levee against flood waters, necessarily it would follow that they had a right to dam up' these natural outlets or water courses.
“I can see no difference between Bookter bayou as' described in the Carrier Case or Burr bayou as described in the Cannon Case and the bayous and leads described in the bill and proof in this case. It may be that the .bayous described in this case are net quite so wide, but it is clear that our1 supreme court intended to apply the maxim as to bayous, ‘Water runs and ought tp run as it was wont to run. ’ Every proprietor of the soili through whicli runs a stream hais the right to have the water course run in the natural current without diminution or obstruction. ’ ’
The record abundantly supports the chancellor’s finding and statement of facts with reference to these leads and bayous being water courses. The dam involved in this suit lies on the western side of the drainage district and on the eastern side of Coldwater river, and runs for approximately thirteen miles from north to *333south, while the river meanders in such manner as to leave a large amount of territory between -the levée and the river, something like forty-five sections of land lying within this 'bend of the river, and on the west side of the levee or dam was constructed a larg,e canal. The proof shows that at the time the dams broke the flood waters coming down Coldwater river struck this canal at the north, and proceeded at a rapid rate through the canal and overflowed its banks, moving logs and other things on the land, and, according to the witness, traveling a,t a rapid rate, with a mighty roar, entered Cold-water river at the south of the canal and levee, and flowed upstream as well as downstream, meeting the flood waters some miles up the river, and by means of the obstructions of the bayous and leads, and the deflection of the water as above described, caused the inundation of the tract between the levee and the river, and also caused the river to overflow on the west side to a greater distance and to a greater depth than it had theretofore overflowed, causing great damage to the owners of this property.
According] to< my understanding* of the law of this .state as heretofore announced in numerous cases, the right of these property owners whose property was so damaged to recover compensation for their damages is clear, and until this time undoubted. The opinion of the majority unsettles the law heretofore announced, and it is exceedingly difficult to estimate the effect of this decision upon the rightte of the citizens; and it will be a wise lawlyer indeed who can advise Ms clients now' what the law is or what their rights may be.
Section 17 of the state Constitution of 1890 reads as follows:
“Private property shall not be taken or damaged for public use, except on due compensation being first made to the owner or owners thereof, in a manner to be prescribed by law; and whenever an attempt is made to *334take private property for a use alleged to be public, the question whether1 the contemplated use be public shall be a judicial question, and, as such, determined without regard to legislative assertion that the u’se is public.”
This section of the Constitution received a construction by the supreme court of Mississippi soon after its adoption in the case of Vicksburg v. Herman, 72 Miss. 211, 16 So. 434, in which the right to recover for damages inflicted upon private property was given a broad *and comprehensive meaning and effect. The court rendering this' opinion was composed of Cooper, Woods, and Whitfield, each of whom ranks with the ablest jurists of the country. In the course of the opinion the court said on this subject:
“Under our former Constitutions, which provided only for due compensation to the owner for taking private property for public use, it had been long held that, to entitle the private owner to compensation for the tailing of his property for public use, there must be •' an invasion of the property, a trespass upon it, and an appropriation of it to public use. There must have been, formerly, that which amounted to a deprivation of the owner of his property; and merely consequential injuries, resulting from the loss or impairment of some rights incident to the use or enjoyment, there being no invasion of the property itself, were not covered by the constitutional prohibition. Such was the law as. understood and applied before the incorporation in the Constitution of the new words we have referred to. The words are without limitation or qualification. They embrace within their inhibition all those attempting to convert private property to public use, artificial as well as natural persons, municipal and other corporations alike; and they cover all damages of whatever character. We are not to suppose that the framers of the new Constitution employed these additional words, all-embracing in their signification and far-reaching in their1 applica*335tion, aimlessly and unadvisedly. As the law theretofore was, the taking of private property for public use without due compensation to the owner was inhibited, and the rights of the private person sufficiently guarded. But we are bound to suppose that, in the judgment of the framers of the new Constitution, wrongs were committed by those exercising the right of eminent domain for -which there was no legal redress, and hardships endured by the citizen for which there was no remedy. The citizen was already protected against the tailing of his property for public use without due compensation first made, but there was no protection against injuries to the rights of the owner of private property less than; the appropriation of the property itself. To have inserted the words ‘or damaged’ in the new Constitution, to cover cases already perfectly provided for in the old Constitution, would have been utterly meaningless. The citizen must now be held, under this new provision of our fundamental law, to be entitled to due compensation for, not the tailing, only, of his property for public use, but for all damages to his property that may result from works for public use. He is now secured in his property, and his use and enjoyment of his property. The burdens formerly borne 'by the citizen, resulting, from damage done his property by a diminution or destruction of his right to use and enjoy his own, were designed by this new constitutional rule to be placed upon those by whose action the diminution or destruction was wrought.”
Again, on page 216 of 72 Miss., on page 435 of 16 So. the court said:
“The absolute justness of a rule which forbids the Invasion and impairment of the citizen’s rights to the use and enjoyment of his property, as well as the actual taking of such property without compensation, to our minds, is beyond controversy. The public benefits derivable to the municipality from the losses of the private *336property owner, in the taking or damaging of his property for the use of all the citizens of the municipality, should he paid for by the whole body' of the corporation, and not by the helpless owner whose property; is taken or damaged, as it seems to us, and as the present Constitution plainly declares.”
The court then proceeded to ■ review the authorities construing the words “or damaged” in other Constitutions, and, among the authorities considered and reviewed by the court and quoted is the case of Chicago v. Taylor, 125 U. S. 161, 8 Sup. Ct. 820, 31 L. Ed. 638 et seq. In this opinion by the United States supreme court, construing a provision of the Illinois Constitution worded exactly like our Constitution, after reviewing the decisions of the Illinois court before the adoption of that constitutional provision and after the adoption of it, giving a broad and comprehensive meaning to the words “or damaged,” and making it effective as a protection to the citizens whose property had been damaged by public use, embracing consequential and remote damages as well as direct damages, the United States supreme court said:
“We concur in that interpretation. The use of the word ‘damaged’ in the clause providing for compensation to owners of private property, appropriated to public use, could have no other intention than that expressed by the state court. Such a change in the organic law of the state was, not meaningless. But it would be meaningless if it should be adjudged that the Constitution of 1870 gave no additional or greater security to private property, sought to be appropriated to public use, than was guaranteed by the former Constitution. ”
In answering in that case the argument, made there as made here, that such construction would be a serious obstacle to public improvements, and would result in crippling or denying such improvements, the court said:
*337“It may he, as suggested by its counsel, that the present Constitution of Illinois, in regard to compensation to owners of private property ‘damaged’ for the public use, has proved a serious obstacle to municipal improvements; that the sound policy of the old rule that private property is held subject to any consequential damages that may arise from the erection on a public use without due compensation being constantly vindicated, and that the constitutional provision in question is ‘a handicap’ upon municipal improvement of public highways. And it may, also, be, as is suggested, doubtful whether a constitutional convention could now be convened that would again incorporate in the organic law the existing provision in regard to indirect or consequential damage to private property so far as the same is caused by public improvements. We dismiss these several suggestions with the single observation that they can. be addressed more properly to the people of the state in support of á proposition to change their Constitution.”
In the case of Richardson v. Levee Commissioners, 77 Miss. 518, 26 So. 963, in. which case counsel for the appellant in the present case was counsel there, this court, speaking through. Judge Whitfield, said:
“The very same section of the Constitution of 1890 (section 17) which provides that ‘due compensation’ shall first be made to the owner for ‘private property taken for public use’ provides also that it shall not be ‘damaged’, for public use without due compensation being first made. The due compensation is, by the Constitution — the supreme law of the land- — -imperatively required to' be first made as well when property is damaged as when it is taken. It is settled by Vicksburg v. Herman, 72 Miss. 211, that the damages referred to in section 17 embrace all damages, direct or consequential, immediate or remote. The measure of the right secured by this section is thus defined and settled by *338this and previous cases in; this state, and includes all private property taken and all private property damaged for public use. The remedy by which both rights are to be secured, section 17 declares, is to be prescribed by law. The framers of the Constitution, embracing1 the very ablest legal talent in this state, then proceeded, as to levee boards to prescribe the remedy, in section 238. It is admitted that that section did prescribe the remedy for due compensation for private property taken; it is denied that it prescribed the remedy for such compensation for damages to such property not taken. It- is first to be observed that the argument in support of this denial is based almost wholly on the proposition that the damages are consequential, and hence not such in character as this board of levee commissioners is a fit or competent body to assess. But this objection, is ended by Vicksburg v. Herman.”
In Duncan v. Levee Commissioners, 74 Miss. 125, 20 So. 838, it was held that an owner of land left outside of the levee, while not entitled to compensation for the reason that his land is outside of the levee, is entitled to damages caused by the levee itself, such as the obstruction to the drainage of the land so situated. In the course of the opinion Judge Whiteield said:
“All damages, therefore, which accrue to lands from the ravages of the river, because not protected against it by the levee, are not to be compensated for. But damages produced by independent causes, other than bieing left outside the levee, if in their nature allowable within the rules of law, are still recoverable. Take the case of land so situated — high at the river, with declination and drainage eastward — that the river rarely or never overflows it, and which yields annual crops of great value, yet such, also, in its topography that were the levee built along its eastern base, rainwater, which had theretofore been carried off through natural or artificial drains eastward, would be backed up. over it, and destroy its crops. *339Manifestly this is not damage accruing because of the lands being left outside the leVne, but because of the construction of the levee over lands of that situation and topographical character; damages caused, to put it otherwise, not because the lands were unprotected by the levee, but caused by the levee itself.”
And it was held that Duncan was entitled to damages for the stopping of the water course.
In Hughes v. Levee Commissioners, 27 So. 744, the court held that, in the absence of proof of public necessity, levee comm|issioners have no right to proceed with the construction of the levee damming a natural stream and causing the water to flood plaintiff’s land, before condemning thel same and paying damages therefor. In that case Hughes was the owner of a plantation which was drained by a natural water course named Black bayou, which stream rises on or near the land of Hughes. Appellee’s levee crossed this stream and dammed it, causing the water to be ponded against the levee, and, by back flowage, to flood part of his plantation. The levee, however, did not actually touch or run through Hughes ’ plantation.
In Corley v. Levee Commissioners, 95 Miss. 617, 49 So. 266, it was held that, where plaintiff’s land was overflowed partly because of heavy rainfalls and partly because the works of the defendant levee district obstructed the flow of the water through its natural channels, and the evidence plainly showed that a material percentage of the damage was due to the construction of the levee, a charge that, unless the jury believed the entire damage to plaintiff’s crops was due exclusively to the levee, and not at all to the act of God, they should find for defendant, was erroneous, and the case was reversed becau.se of insufficient compensation for the damage done by obstructing this water course.
In A. & M. R. R. Co. v. Beard, 93 Miss. 294, 48 So. 405, the court again recognized that a party is entitled to dam*340ages where another obstructs a water course.
In I. C. R R. Co. v. Miller, 68. Miss. 760, 10 So. 61, it is held that one is liable in damages who collects in artificial channels surface water falling upon his own land 'or that of others, and discharges it in undue and unnatural quantities upon the land of another.
in Ham v. Levee Commissioners, 83 Miss. 534, at page 558, 35 So. 943, 948, another drainage case, the court in its opinion, after discussing other questions in the case, has the following to say:
“The sole remaining question requiring consideration is what rights and remedies the complainants have, and how they can be asserted. There is no contention but that they are entitled to due compensation for the value of all property taken and for all damages caused by the erection of the proposed levee, and there is no denial that this must be made before the property is in fact taken. As to this, appellants have a perfectly plain and adequate remedy prescribed by law, and the methods in which their rights inay be asserted is clearly set out in section 233 of the Constitution, and section 3 of chapter 168, p. 142, Laws 1884. Nor is the extent of their rights subject to doubt. It is true that they cannot recover damages from the fact alone that their lands are left outside the levee, and are therefore not protected from the high water. Recoveiy on this ground is expressly forbidden by section 238 of the Constitution. This branch of the subject was most elaborately discussed in Richardson v. Board of Mississippi Levee Commissioners, 77 Miss. 518., 26 So. 963, and it was there expressly decided that the damagesi mentioned in section 17 of the Constitution, for which due compensation was to be made, embraced ‘all damages, direct or consequential, immediate or remote. ’ See Vicksburg v. Herman, 72 Miss. 211, 16 So. 434; Duncan v. Levee Commissioners, 74 Miss. 125., 20 So. 838. So that appellants have ample protection in existing pro1 visions, not only to prevent the board of levee commis*341sioners from taking any of their property for public use without first fully paying therefor, but to also insure that they will receive due compensation for all damages inflicted, whether such damages are caused by seepage water, damming of surface water, or obstructing of natural drainage, and whether the land affected lies outside or inside of the levee.”
In Liles v. Cawthorn, 78 Miss. 569, 29 So. 834, this court held: “Every proprietor through whose.land a stream passes is entitled to have it run in its natural state without diminution or obstruction.”
And held that — “When the owner of a water mill so builds the dam thereof as to cause the backwater therefrom to injure the power of a like mill on the same stream, the owner of the latter may treat such dam as a nuisance, and of his own authority enter and remove so much of the same as causes the injury sustained.”
In Leflore County v. Cannon, 81 Miss. 334, 33 So. 81, it was held that a county without resorting to eminent domain could not obstruct a stream, and the county was enjoined from so doing. Judge Calhoun in this case said:
“Under our Constitution and laws neither municipalities, nor counties, nor the sovereign state itself can damage the humblest individual, in violation of the maxim \f‘Aqua cwrit et debet currere ut currere solebat”], except in the lawful exercise of the right of eminent domain, and then not without previous compensation, ascertained by lawful methods. This is true regardless of the benefit to the public at large. ’ ’
■ To "the same effect is Board of Supervisors of Quitman County v. Carrier Lumber Co., 103 Miss. 324, 60 So. 326.
In Thompson v. Railroad Co., 104 Miss. 661, 61 So. 596, it was held that a railroad company is responsible for any damage resulting from its obstruction of a natural water course, without reference to whether or not the obstruction was reasonable or unreasonable. In the con-*342eluding paragraph of the opinion in this case this court said:
“In this state it has been held that the railroad must take care of the flow of the surface water, if to do so would not result in any danger to traffic, and if this could be done without incurring an additional expense out of all proportion to the injury of adjacent lands. From the necessities of the case, the courts adopted a rule with regard to the flow of surface water applicable to railroads which would not apply to ordinary landowners. Sinai v. Railway Co., 71 Miss. 547, 14 So. 87. So far as the flow of water in natural courses is concerned, the railroad company would be required to answer for any damage resulting from its obstruction of such water courses, without reference to whether or not the obstruction was reasonable or unreasonable. In other words, the obstruction of a natural water course imposes upon the obstructor the' obligation to answer for all damages flowing from such obstruction.”
In Learned v. Hunt, 63 Miss. 373, there was a bill filed for an injunction to prevent obstructing by locks or dams the natural flow of water through what is known as Isenhood bayou. It was alleged that Isenhood bayou was a natural outlet or drain by which such overflowing waters of the Mississippi river returned to that river at a point below, and that if this bayou was closed or obstructed in any way the water will stand upon the plantation for a long while and greatly injure thepi. In the opinion of the court by Cooper, C. J., it is said:
“ ‘The character of the injury inflicted upon the complaintnt’s lands by reason of the construction by the locks and gates placed by the defendants in the stream by which the overflowing waters of the river are returned to it, warrants the interposition of a court of equity to prevent-the injury by the writ of injunction.”
In the majority opinion, referring to the bayous involved in this suit, it is said: “These water courses or *343outlets were inactive bayous, sloughs, and depressions which amounted to mere conduits or passage ways for foreign flood waters. They were not natural running streams, nor regular flowing water courses. It is true some of them contained waters of their own, but it ordinarily flowed in no direction. There was no regular and continuous current in these natural water courses.”
While I think the record will show that this statement is inaccurate, and that these are streams through which water flows at certain intervals regularly, still, accepting this statement as true, the majority opinion overthrows the settled law of this state upon the subject of what constitutes a watercourse.
In Ferris v. Welborn, 64 Miss. 29, 8 So. 165, in the second syllabus on the 'subject of water courses, it is said: “And a creek which has a channel one-half of a mile long, with definite bed and banks of varying width and depth, through which water is conveyed and discharged into lowlands adjacent, to a running stream, though it be dry most of the time, but running when there is water' to be carried off by it, is a water course, with all of the incidents thereof.”
In the first syllabus of this case it is said: “A riparian owner has the right to have a natural water course which drains his lands adjacent thereto' remain unobstructed and as nature made it, in, its course onward through the lands of another. ’ ’
The opinion in this case was rendered by Judge Campbell.
In Belzoni Drainage Commission v. Winn, 98 Miss. 359, 53 So. 778, it is said: “A natural channel with defined bed and banks of varying width and depth through which water is conveyed and discharged is a ‘water course, ’ and the fact that it is most of the time dry or not running is not enough to deprive it of the character of a ‘water course.’ ”
*344The opinion in this case was delivered by Mayes., C. J. He quotes Judge Campbell in Ferris v. Wellborn, supra, and says: “This case was cited with approval in the case of Rait v. Furrow, 74 Kan. 101, 85 Pac. 934, 6 L. R. A. (N. S.) 157. The question of what constitutes a water course has been a perplexing one for the courts, and there is a varying line of decisions on this subject. It is not our purpose to attempt any reconciliation of the authorities. Under1 every decision and under every definition, ‘ all natural drains ’ must be held to include natural water courses, as well as swales or ravines which might hot be held to be water courses. ’ ’
. In the case of Bait v.. Furrow, 74 Kan. 101, 85 Pac. '934, 0. L. E. A. (N. S.) 157, 10 Ann. Cas. 1044, quoted above by Judge Mayes with approval, it is said: “Where water runs in a well-defined channel, with bed and banks made by the force of the water, and has, a permanent source of supply, it is to be regarded as a natural water course, although the stream may be small, its course 'short, and it may have existed for only a short time.”
The second syllabus of this opinion says: “The source of supply may be springs, surface water, or a pond formed by surface water; but, whatever the source, if it has -the element of permanence, it becomes a natural water course where the water comes to-, or collects on, the surface and flows in a well-deifihed channel and bed, with such banks as will ordinarily confine the water and cause it to run in a definite direction. ’ ’
In the fourth syllabus it is said: “A stream may be a natural water course, although its outlet be over the unchanneled surface of lowland, and not into another water course.”
It will be seen -from the Mississippi cases cited, when read in connection, with the majority opinion, that the ■ law of waters in this state from the 'beginning up to now has been unsettled by the decision of this case, and that the course of decisions for the past thirty years, con*345struing section . 17 of the state Constitution of 1890, has been put in uncertainty and confusion if they have not been destroyed. The majority opinion deals with the decisions prior to the Constitution of 1890, and those subsequent to it as. though the law was not affected or changed by the*words “or damaged,” inserted for the first time in 1890 in the Constitution óf this state.
The Harkleroads Case, 62 Miss. 807, and the Richardson Case, 68 Miss. 530, 9 So. 351, were constructions of the laws as they existed prior to 1890, when the constitutional provision simply provided that property should not be taken for public use except on due compensation being first made to the owners thereof. The announcement of those cases on the Constitution as it then was is in accord with the weight of authority wherever that provision was in a Constitution.
As shown by the case of Chicago v. Taylor, 125 U. S. 161, 8 Sup. Ct. 820, 31 L. Ed. 638, the Illinois court, prior to 1870, held in accord with those decisions, but when the Constitution was changed by the insertion of the words “or damaged” after the word “taken” and before the words “for public use,” the law was necessarily radically changed. The majority opinion ignores this vital distinction between cases before' and after the Constitution of 1890. In the fifth amendment to the Constitution of the United States the provision pertinent to the present question reads as follows: “Nor shall private property be taken for public use without ■ just compensation” — and of course under this provision the decisions of the United States supreme court in Jackson v. United States, 230 U. S. 1, 33 Sup. Ct. 1011, 57 L. Ed. 1363; Hughes v. United States, 230 U. S. 24, 33 Sup. Ct. 1019, 57 L. Ed. 1374, 46 L. R. A. (N. S.) 624, and Cubbins v. Mississippi River Commission, 241 U. S. 351, 36 Sup. Ct. 671, 60 L. Ed. 1041, are proper and correct. But the decision of the United States supreme court in Chicago v. Taylor, supra, shows with precision *346Avhat the United States supreme court would hold were it construing1 a constitutional provision similar to section 17 of our Constitution..
The chancellor in his opinion well said on this subject:
“There are; two lines of authorities in the United States as to control of flood waters by levees. These two distinct lines of authorities are not in harmony, and are diametrically opposed to each other. One line of authorities holds that the party who constructs a levee • to protect his land from the overflow waters of a stream must have regard for the rights of his neighbor, and that the overflow waters are a part of the stream which cannot be obstructed without liability for the consequential damage caused by an obstruction. The other authorities are mainly from the states of California and Arkansas, and the supreme court of the United States holds in effect that flood waters are a common enemy, and that the great beneficial results achieved by leveeing against the flood waters renders injury to the other landowners damnum absque injuria.”
The majority opinion departs from the faith of the fathers in this state, and wanders after foreign gods. It ceases to worship at the altar of Mississippi precedents, and bows the knee to Baal, Asteroth, and Moloch.
Instead of giving the individual the protection intended by section 17 of the Constitution of 1890, he is forced to bear the burden alone, or with a few others situated in the same way, for public improvements, real or fancied. Numbers of imaginary benefits, as well as some real ones, are paraded before the court as a justification for the decision we are asked to make in the present case, and argument made as to the calamitous consequences to the delta section of the state that will result from adhering to the construction adopted in Vicksburg v. Herman, 72 Miss. 211, 16 So 434, with such consummate ability by the distinguished jurists who then composed the court. It seems to me that a sufficient *347reply to this line of argument is made by the Georgia court in O’Connell v. Railway Co., 87 Ga. 246, 13 S. E. 489, 13 L. R. A. 394 27 Am. St. Rep. 257, where Judge Lumpkin, in answering; a similar argument, said:
“It was urged in the argument that the law ought to encourage the reclaiming’ and improvement- of lands which are subject to injury from the natural action of floods and surface water; and it is surprising to find this 'argument unquestionably relied upon in many cases which are supposed to follow the common law of surface water. The error therein is easily exposed; for to the same extent as the land of an adjoining owner is damaged by the improvement on the defendant’s land, so far exactly is the development of the damaged land set back and retarded. The defendant might bring his land to perfection for his uses, and then have all that good work ruined by the first measures of improvement adopted by his less progressive neighbor. The rule contended for by the defendant would be a poor encouragement to painstaking labor engaged in reclaiming1 unprofitable land. Every one is charged with notice of nature’s, operations, but who can tell when a man will build his bulwarks against the flood? There is no public policy to allow one landowner to improve his condition at the cost of his neighbor; but the improver must, at his peril, see to it that the benefit to himself is large enough to pay both him and his neighbor’s damage, if any. The law does not look to the interest of one individual but recognizes and enforces the duties implied in his relation to others.” ■
The majority opinion quotes from the supreme court of Arkansas, McCoy v. Levee District, 95 Ark. 345, 129 S. W. 1097, 29 L. R. A. (N. S.) 396. But Arkansas is lined up with that line of authorities which refuse to give any legal meaning to the words -“or damaged”1 in| the Constitution, but construe the Constitution with this *348provision to mean in legal effect the same thing as the taking of property for public use.
The Texas case of Ft. Worth Improvement District v. Ft. Worth, 106 Tex. 148, 158 S. W. 164, 48 L. R. A. (N. S.) 994:, gnes exactly contrary to the Arkansas doctrine, and is in accord with the doctrine of this state for the past thirty years prior to the present announcement.
In Bradbury v. Vandalia Levee & Drainage District, 236 Ill. 36, 86 N. E. 163,19 L. R. A. (N. S.) 991, 15 Ann. Cas. 904, the Illinois court held that a drainage district which constructs a levee along a river and from the river to the highlands in such a way as to obstruct the natural flow of the flood waters of the river and cast it back on the property farther up the stream is liable for the injury thereby caused where the Constitution provides that private property shall not be taken or damaged for public use without compensation. It is further held that a drainage district cannot escape liability for injury done by its improvement to lands lying, out of its limits on the theory that it is an involuntary gw&si-public corporation, not liable to respond in damages for any of its acts, where its organization depends upon a petition of those living within its limits, and the statute provides that lands lying within the district shall be liable for any and all damages which shall be sustained by any land lying above such district by the contraction of its works.
In Tidewater Ry. Co. v. Shartzer,. 107 Va. 562, 59 S.(E. 407, 17 L. R. A. (N. S.) 1053, it was held that the word “damaged” as used in a constitutional provision, forbidding the enactment of a law whereby property shall be damaged for public use without just compensation, is not confined to acts which would give a cause of action if done by an individual. And, also, damages for diminution in
*349the market value of property, not taken, by smoke, noise, dust, and cinders arising from the proper, ordinary, and lawful operation of a railroad seeking a right of way, may be allowed the owner under provisions of a Constitution that the legislature shall not enact any law whereby private property shall be taken or damaged for public purposes without just compensation, and of a statute that damages shall be awarded which result from injuries to the property of any person from the construction and operation of the works. Appended to the report of this case in L. R. A. is a note on the right under constitutional provisions against damaging private property for public use without compensation, to compensation for consequential damages to property, no part of which is talien from smoke, noise, dust, etc., incident to ordinary operation of railroads. In this note there is a- divergence of authority as to the recovery of consequential and indirect damages. But as shown in Vicksburg v. Herman, 72 Miss. 211, 16 So. 434, our court aligned itself with those cases holding that consequential and remote damages as well as direct damages may be recovered. 1
In Railway v. Bloom, 71 Miss. 247, 15 So. 72, it was held that section 17, Constitution of 1890, enlarges the previous rule on the subject, in that it provides that private property cannot be taken or damaged for public use except on due compensation first being made to the owner. It was held in that case that a railroad cannot escape liability, although it acquired its right of way prior to the adontion of the Constitution of 1800.
In King v. Vicksburg Ry. & L. Co., 88 Miss. 456, 42 So. 204, 6 L. R. A. (N. S.) 1036, 117 Am. St. Rep. 749, it was held that section 17, Constitution of 1800, forbidding the taking or damaging of private property for public use, except on due compensation being first made to the owner in a manner to be prescribed by law, while primarily applicable to eminent domain proceedings, is *350equally protective of the owner where his property is damaged hy a public use without condemnation. That due compensation is what will make the owner whole pecuniarily for appropriating or injuring his property by any invasion of it cognizable by the senses, or by interference with some right in relation to property whereby its market value is lessened as the direct result of the public use. And it was held that the property owner could recover damages resulting from depreciation in the value of property caused biy noise, smoke, soot, cinders, and the like, if sufficient to render its occupancy uncomfortable. 1
In A. & V. Ry. Co. v. King, 93 Miss. 379, 47 So. 857, 22 L.R.A. (N. S.) 603, it is held that, where a railroad company which to meet the demands of its increased traffic lays additional sidetracks on its right of way held under a charter authorizing it to acquire and use the same for all necessary railroad purposes, it is liable to the owner of buildings on contiguous land for.damages thereto resulting from smoke and vibrations caused by the operation of trains on such side tracks, though the companv aenuired its right of wav before such buildings were erected, and when the state Constitution forbade, riot the damaging. but only the taking, of private property for public use without just compensation. See, also, the authorities cited under section 17, Constitution of 1890', in Hemingwav’s Code, upon the subject.
In Miller & Lux v. Madera Canal & Irrigation Co., 155 Cal. 59, 99 Pac. 502. 22 L. R. A. (N. S.) 391, it 'was held that flood waters of a river which is annually swelled bevond its ordinarv banks bv climatic conditions at certain times of the year, except in unusual seasons, and which flow as the main body of the river, being confined bv the conformation of the land, although without well-defined boundaries or visible banks, are part of the natural water course, and the 'rights of a riparian owner thereto cannot be invaded or interfered with by non-*351riparian owners, to his injury. That a riparian owner is entitled to enjoin the diversion of flood waters of a river which annually flow over Iris land, bearing fertilizing material and irrigating it sufficiently to make it productive, whereas should the flow cease the land would become arid and greatly depreciate in value. It was also held that a riparian owner cannot be deprived of his right to the flow of the stream without compensation because its use by others will be more beneficial to the state.
In Town of Jefferson v. Hicks, 23 Okl. 684,102. Pac. 79, 24 L. R. A. (N. S.) 214, it was held that the owner of lands situated upon a watercourse may construct an embankment thereon to protect his land from the superabundant water in times of flood; but in doing so he must so place the embankment that the natural and probable consequences of the embankment in times of ordinary floods will not be to cause the overflow to erode, destroy, or injure the lands of other proprietors upon the water course. It is also said in that opinion that an ‘ ‘ ordinary flood” is one which, by the exercise of ordinary care and diligence in investigating the character and habits of the watercourse, migiit have been anticipated. It is also held that overflow waters' that continue in a general course, although without defined banks, -back into the watercourse from which they started or into another watercourse, do not become “surface waters,” but remain a part of the watercourse. It is also held that an injunction would lie in equity to restrain the landowners on one side of a stream from maintaining a levee upon the bank thereof, whereby the flood waters of the stream are made to overflow unnaturally the land of others on the opposite side of the stream, without regard to the ability of the landowners who constructed 'the embank ment to respond in damages. There is also a case note to this case in the L. R. A. report.
In Walters v. Marshalltown, 145 Iowa, 457, 120 N. W. 1046, 26 L. R. A. (N. S.) 199, it was held that to render *352one liable for casting the flood waters of a river onto other riparian property by the erection of an embankment upon' his own the amount of water upon the other property mtíst be unduly as well as materially increased. In the case note to this case the editor in the L. E. A. series said:
“As was said in the note to Jefferson v. Hicks, 24 L. R. A. (N. S.) 214, it is undoubtedly the general rule that a riparian proprietor has no right to erect a levee or artificial bank along the margin of a stream, which will cause superabundant water, in time of ordinary floods, to flow upon or injure the lands of the opposite or other riparian proprietors.”
See, also, the case note to Avery v. Vermont Electric Co., 59 L. R. A. 876, under heading “Effect of Flood. Ordinary Freshets.” See, also, Keck v. Venghause, 127 Iowa, 529, 103 N. W. 773, 4 Ann. Cas. 716.
Independent of the obstruction of natural watercourses by the levee in question, I think the appellants had no right to obstruct and divert the overflow water from Coldwater river in the manner shown by the' facts in this case. See Burwell v. Hobson, 12 Grat. (Va.) 322, 65 Am. Dec. 247; Uhl v. Railroad, 56 W. Va. 494, 49 S. E. 378, 68 L. R. A. 138, 107 Am. St. Rep. 968, 3 Ann. Cas. 201; Cairo R. R. Co. v. Breevort (C. C.), 62 Fed. 129, 25 L. R. A,. 527; Fordham v. Railroad, 30 Mont. 421, 76 Pac. 1040, 66 L. R. A. 556, 104 Am. St. Rep. 729; Crawford v. Rambo, 44 Ohio St. 282, 7 N. E. 429; Wine v. Railroad, 48 Mont. 200, 136 Pac. 387, 49 L. R. A. (N. S.) 711, Ann. Cas. 1915D, 1102; West v. Taylor, 16 Or. 165, 13 Pac. 665; Wallace v. Drew, 59 Barb. (N. Y.) 413; C., B. & Q. R. R. Co. v. Emmert, 53 Neb. 237, 73 N. W. 540, 68 Am. St. Rep. 602; Clark v. Patapsco, 144 N. C. 64, 56 S. E. 858, 119 Am. St. Rep. 931.
I regret to have been compelled to use language which appeal's rather strong in this dissent, and my dissent is in no sense the complaining of a disgruntled judge, but *353is to he considered as a distress signal thrown out to the bar for help in preserving to the citizens of the state the protection of the Bill of Bights as understood by the constitutional convention and as interpreted by our distinguished predecessors. I cannot help feeling that the bar will be unable to advise a citizen as to his right in future cases,, and the citizen is cast upon a troubled sea, with neither compass, rudder, nor polestar. In despair he may well exclaim:
“ Alas for him who on the law’s troubled deep Floats idly, the sport of the tempestuous tide, With no port to shield him, and no star to guide.”Cook, J., concurs in this dissent.