concurring.
I concur with the opinion of the majority and especially with the ninth syllabus which correctly states the law applicable to all surface water. But because our opinions are not too clear on this subject matter as to wholly diffused surface water, which is the fact situation here, I think a further statement is desirable.
This state early adopted the common law rule as to surface water, which rule is stated in Morrissey v. Chicago, B. & Q. R. Co., 38 Neb. 406, 56 N. W. 946, as follows: “Under the common law rule, surface water is regarded as a common enemy, and every landed proprietor has a right to take any measures necessary to the protection of his own property from its ravages, even if in doing so he throws it back upon a coterminous proprietor, to his damage, which the law regards as a case of damnum absque injuria, and afford*545ing no cause of action.”
In connection with this rule of the common law our de-, cisions adopted what is often referred to as exceptions thereto whereby the proprietor, in making* a defense on his own land, must exercise ordinary care and so use his own property as not to unnecessarily or negligently injure another. With the possible exception of the case of Conn v. Chicago, B. & Q. R. Co., 88 Neb. 732, 130 N. W. 563, all the cases I can find that discuss these exceptions deal with surface water that had collected in natural drains, draws, or ditches or that had been collected and then dumped or' discharged upon another’s land.
In the case of Conn v. Chicago, B. & Q. R. Co., supra, the court discussed the principle here involved in connection with diffused surface water in, the following language: “Subsequently, in a, long line of decisions, unnecessary to cite, this court say that a proprietor may improve his premises in any proper manner, although he may thereby interfere with diffused surface water, without becoming liable to his neighbor, provided he does not unnecessarily or negligently injure him.” From reading the opinion it is not certain that the case involved wholly diffused surface water.
However, in view of language contained in some of our' decisions, such as in Town v. Missouri P. Ry. Co., 50 Neb. 768, 70 N. W. 402, and the discussion contained in Muhleisen v. Krueger, 120 Neb. 380, 232 N. W. 735, there may be doubt as to whether the duty to not unnecessarily or negligently injure another applies to a proprietor in defending himself against wholly diffused surface water. The languag*e referred to in Town v. Missouri P. Ry. Co., supra, is as follows: “On the other hand, there may be a flow of diffused waters over the surface of lands, which passes across the country in such condition, and nowhere gathers in large or restricted volume, or in any stream confined within banks or in a channel. This last may be said to be true surface drainage, as to which the general rule of law is applicable in its full force.”
I do not think the rule, that a proprietor in making a de*546fense to surface water on his own land must himself exercise ordinary care and so use his own property as not to unnecessarily or negligently injure another, is any exception to the common law rule as to surface water hereinbefore set forth. It is a common law rule equally applicable to all surface water, including diffused surface water, which limits the application thereof. As this court stated in Lincoln & B. H. R. Co. v. Sutherland, 44 Neb. 526, 62 N. W. 859.
“The doctrine of this court is the rule of the common law, that surface water is a common enemy, and that an owner may defend his premises against it by dike or embankment,' and if damages result to adjoining proprietors by reason of such defense, he is not liable therefor.
“But this rule is a genera^ one and subject to another common law rule, that a proprietor must so use his own property as not to unnecessarily and negligently injure his neighbor.” See, also, City of Beatrice v. Leary, 45 Neb. 149, 68 N. W. 370, and Chicago, R. I. & P. R. Co. v. Shaw, 63 Neb. 380, 88 N. W. 508.