I concur in the affirmance of this judgment, but I think it ought to be affirmed on the ground that secs. 1236, 1237, and 1237a of the Statutes by clear implication authorize the construction of drains or ditches on lands of abutting owners when necessary for the improvement or preservation of the highway, and recognize the right of the abutting owner to have damages therefor. This would make it unnecessary to determine the controverted question whether such damages are included in the award of damages made when the land was taken for highway purposes or in the release of damages which sometimes takes the place of the award. Turner v. Dartmouth, 13 Allen, 291; Wakefield v. Newell, 12 R. I. 75; Chicago v. Taylor, 125 U. S. 161, 8 Sup. Ct. 820; Bockoven v. Lincoln, 13 S. Dak. 317, 83 N. W. 335; 1 Elliott, Roads & S. (3d ed.) § 556 and cases cited. Because, if it is doubtful whether so included or not included, the legislature could and did give this right of recovery by supplemental condemnation proceedings. The alleged rule of the common law by which surface water is said to be a “common enemy” is not, I think, applicable to highways or railroads. These structures, after lawful acquisition of the land upon which they are built, necessitate em*323bankments across lower places where the surface water formerly flowed and cuts through the higher places on the surface. The proportion of level land is small. The general surface is wavy or undulating. The surface thus intercepted by embankment must be carried along in ditches parallel with the embankments or cuts until a possible point of discharge, is reached. At this point, after being thus collected, it is necessarily discharged often from several different small watersheds and in a much increased volume. So culverts may be constructed across the embankment in the lower places and the proprietor or trustee of the road may be liable for damages for negligent failure to construct such culverts. He or it, therefore, cannot by such embankments dam up against surface water, and he or it can collect the surface water from several small watersheds and discharge it in increased volume on adjacent land of others. Even the construction of a culvert at the lowest point in a considerable watershed will collect the surface water in increased volume and discharge it upon the lower adjacent proprietor. The abutting owner cannot on his own land bank up this culvert and throw the water back on the highway. I remember a case in one of the Southern states where a criminal prosecution for doing so was sustained on common-law principles. So I think the “common enemy” references in the opinion are misleading. Besides, it seems to me about time to begin to straighten out this “common enemy” surface water tangle in this state. There never was any such common-law doctrine. I shall not attempt to collect authorities. Many of them will be found collected in 3 Earnham on Waters, secs. 889&, 889c, 889c/, 889e, and 889/.
In the section first referred to it is said:
“There is no general right to fight surface water as a common enemy. All rightful acts with regard to it are confined within very narrow limits which have not yet been fully defined. And to state generally that such water is a *324common enemy, or that there is a right to fight it at common law, cannot be otherwise than misleading.”
The ancient and modern English view will be found in Halsbury’s Laws of England, yol. 16, p. 113: “The common law imposes a duty upon occupiers of land adjoining a highway to clean and. scour their ditches so as to prevent any nuisance to the highway,” citing Eac. Abr. tit. Highway, D., and other authorities. See, also, Peck v. Baraboo, 141 Wis. 48, 122 N. W. 740. When this court in Shaw v. Ward, 131 Wis. 646 (see p. 647, par. 3), 111 N. W. 671, and in Manteufel v. Wetzel, 133 Wis. 619, 114 N. W. 91, ruled that the upper proprietor had a legal right to improve his land and rid it of surface water by ditching thereon in the direction of the former flow of surface water down to the adjoining land of the lower proprietor, who in turn possessed a like legal right, it necessarily decided that the lower proprietor could not dam up this ditch and set the same water back again on the lands of the upper proprietor. That is to say, this court necessarily so decided, unless we are to have the legal paradox, that, as between two private parties, one has a. legal right to do a certain act and another has a legal right to prevent the former from doing the same act; or, what is equivalent, a legal right to frustrate the object and purpose of the exercise of the former legal right which his adversary, as the law says, possesses. If this is “the perfection of reason,” then it is, according to Coke, fit to rank as common law; otherwise not.
I have no desire in this memorandum to do more than note my comments and arouse inquiry on the subject, for in this way law grows and finally perfects itself.