dissenting.
I concur in the view expressed that instructions 10 and 11 are subject to criticism, but do not concur in the view that they were not prejudicial to the defendant. In my view, the instructions informed the jury that defendant owed a duty, which the law does not impose, and thereby permitted the jury to consider acts as negligence which were not, in fact, negligence, because no duty was imposed by law to maintain the dikes or other improvements. Since there was no duty imposed, there could be no negligence in failing to maintain the dikes or other improvements. As I view the matter, these instructions were prejudicial to the defendant and perhaps caused the jury to enter a verdict for the plaintiff when, but for such instructions, the verdict might have been for the defendant.