prepared the opinion for the court.
The defendant owns, operates and maintains a railway line from Three Forks to Bozeman, Montana, through the town of *522Manhattan. The plaintiff owns 18.46 acres of land situated near Manhattan and a short distance south and west of defendant’s railroad. The complaint alleges that “across said piece of land are certain natural watercourses which drain the land belonging to this plaintiff, and other lands surrounding the land of said plaintiff,” and further alleges that these natural watercourses drain across the right of way of this defendant. Plaintiff has a house upon his land in the basement of which was a large quantity of personal property during the years. 1916 and 1917. The defendant is charged with negligence in the reckless and careless construction and maintenance of a high embankment as a roadbed across the natural watercourses upon plaintiff’s and adjoining lands, without culverts or openings for the escape of the waters flowing therein, as a result of which these waters, in the spring of 1916 and 1917, were dammed up and caused to overflow plaintiff’s land, to the damage of his land, house and personal property therein in the sum of $5,000. The answer puts in issue all of the material allegations of the complaint except the ownership and operation of the railroad by defendant and the ownership of the lands of the plaintiff, and alleges affirmatively that, if any damage was done to the property of the plaintiff as charged, it arose by reason of a county highway built by Gallatin county between the land of the plaintiff and the right of way of defendant. Trial was to a jury. Plaintiff prevailed. Judgment was made and entered accordingly and motion for a new trial denied. Appeal is from both the judgment and order denying the motion.
Although appellant has specified thirteen assignments of error, it only becomes necessary in the disposition of these appeals for this court to adopt a rule of liability for the obstruction of surface waters. In Fordham v. Northern Pac. Ry. Co., 30 Mont. 421, 104 Am. St. Rep. 729, 66 L. R. A. 556, 76 Pac. 1040, this court has succinctly laid down the rule to determine the character of water.
[1] That the property of the respondent has been damaged by water overflowing his land is no less a certainty than that *523the water which caused the damage is properly designated as “surface water,” nor, under the evidence, is there opportunity for discussion as to whether or not the invading waters were conveyed through natural watercourses, for the plaintiff testified that what he termed “watercourses” were “slight depressions,” “draws,” or “swales.”
Anderson’s Dictionary of Law defines a watercourse as follows: “A living stream with defined banks and channel, not necessarily running all the time, but fed from other and more permanent sources than mere surface water.” This definition has our approval, and the evidence in the instant case discloses none of the elements required to constitute a watercourse.
[2] There are two rules by which liability for the obstruction of surface waters is measured — one known as the rule of the civil law, the other the rule of the common law. Under the former, the lower premises are subservient to the higher, and the latter has a qualified easement with respect to the former, which gives the right to discharge all surface water upon ' them. The common-law doctrine is the reverse. The lower land owner owes no duty to the upper land owner; each may appropriate all the surface water which falls upon his premises, and the one is under no obligation to receive from the other the flow of any surface water, but may in the ordinary prosecution of his business and the improvement of his premises, by embankments or otherwise, prevent any portion of the surface water coming from such upper premises. (Walker v. New Mexico & S. P. R. Co., 165 U. S. 593, 41 L. Ed. 837, 17 Sup. Ct. Rep. 421.) Under the common law, surface water is the enemy of all mankind, and each land owner has the right to protect his own land therefrom. (Campbell v. Flannery, 29 Mont. 246, 252, 74 Pac. 450.)
Section 3552, Revised Codes, provides: “The common law of England, so far as it is not repugnant to or inconsistent with the Constitution of the United States, or the Constitution or laws of this state, or of the Codes, is the rule of decision in all the courts of this state,” Hence the jurisprudence of *524this state is governed by the rules of the common law unless the statutes determine otherwise.
The respondent urges subdivision 5 of section 4275, and section 4362, Revised Codes, as determinative of defendant’s liability. Subdivision 5 of section 4275, is as follows: “Every railroad corporation has power: * * * To construct their road across, along, or upon any stream of water, watercourse, roadstead, bay, navigable stream, street, avenue, or highway, or across any railway, canal, ditch or flume, which the route of its road intersects, crosses or runs along, in such manner as to afford security for life and property; but the corporation shall restore the stream or watercourse, road, street, avenue, highway, railroad, canal, ditch or flume thus intersected to its former state of usefulness, as near as may be, or so that the railroad shall not unnecessarily impair its usefulness or injure its franchise.”
Section 4362, Revised Codes, is as follows: “It shall be the duty of every corporation, company, or person owning or operating any railroad, or branch thereof, in this state, and of any corporation, company, or person constructing any railroad in this state, within three months after the completion of the same through any county in this state, to cause to be constructed and maintained suitable ditches and drains along each side of the roadbed of such road or to construct culverts or openings through such roadbed to connect with ditches or drains, or watercourses, so as to afford sufficient outlet to drain and carry off the water along such railroad whenever the draining of such water has been obstructed or rendered necessary by the construction of such railroad; provided that none of the drains or ditches herein referred to shall be- required to be constructed by any of the persons or corporations herein named or described, except when required to remove and drain off water accumulated upon property adjacent to or upon the right of way whose natural channel or outlet has been destroyed or impaired by the embankment of such railway so constructed as aforesaid. * * * ”
*525The former section does not settle the liability of defendant herein, because the evidence of the plaintiff negatives the existence of a watercourse, and, without the existence of a watercourse, this section is wholly inapplicable to the facts in this case, and liability must be fixed by the rule of the common law; and section 4275, supra, has not modified that rule.
Section 4362, Revised Codes, quoted above and urged by respondent, is not in conflict with section 4275, supra, nor does it in any sense alter the common-law rule herein set forth. That portion of section 4362, supra, included within the exception or proviso, which mentions “natural channel” or “outlet” refers back to the first or main body of the section, fixing the requirements of railroad corporations as to ditches, drains, and watercourses, and means “ditches,” “drains,” or “watercourses” as therein expressed, and hence the provisions of this section likewise afford no relief to the respondent.
We therefore conclude that, the plaintiff having failed to establish the existence of any watercourses as alleged in his complaint, and the trespassing waters being vagrant in their nature, or surface water, the defendant owed no obligation to the plaintiff in the protection of the latter from the encroachment of such waters. The court erred in refusing to give defendant’s offered instruction No. 1-A as set forth in the sixth specification of error. Other assignments of error, we think, are meritorious, but, as the complaint herein must be dismissed, further discussion is unnecessary.
For the reasons given in the foregoing opinion, we recommend that the judgment and order appealed from be reversed and the cause remanded to the district court of Gallatin county, with directions to dismiss the complaint.
Per Curiam :For the reasons given in the foregoing opinion, it is ordered that the judgment and order appealed from be reversed and the cause remanded to the district court of Gallatin county, with directions to dismiss the complaint.
Reversed.