dissenting. There are only two issues raised by the pleadings in this case; first, appellee, plaintiff in the circuit court, alleges that the defendants, appellants here, negligently obstructed a natural drain. The appellants, defendants in the circuit court, deny this allegation and plead the statute of limitation. The pleadings were never amended or treated as amended, and no other issue was submitted to the jury. There should have been a directed verdict for the defendant, the Greasy Slough Outing Club.
The obstruction across Greasy Slough was constructed by Lee Wilson & Co. in 1942, at which time that company owned the property now owned by the Greasy Slough Outing Club and the adjoining property leased by appellee Amick in 1947-48. The conveyance to the outing club was in 1945, three years after the obstruction was built across Greasy Slough. Lee Wilson & Co., at the time the obstruction was built, owned all of the property involved in this litigation; it owned the property which was later conveyed to Greasy Slough Outing Club in 1945 and owned the property later leased to appellee Amick in 1947-48. There is no contention on the part of anyone that Lee Wilson & Co. did not have the right to build an obstruction across Greasy Slough in 1942 when it owned all of the land affected in any manner whatsoever by the obstruction. Amick did not lease any of the land from Lee Wilson & Co. until 1947, five years after the obstruction had been built across Greasy Slough. So far as Amick was concerned Greasy Slough was no longer a natural drain; the obstruction had been built across it by one who had a perfect right to do so.
It is true that in 1947 the Greasy Slough Outing Club placed a 48-inch culvert in the obstruction that had been built across Greasy Slough previously; but there is not a scintilla of evidence to the effect that the hunting club installed this culvert for any purpose other than to facilitate the flooding of its own property when so desired. A flood gate was placed in the end of this culvert to control the flow of water at the will of the hunting club. There was no obligation on the part of the hunting club to open the flood gate for the benefit of Amick.
The obstruction was there when Amick leased the property, and he had no dealings whatever with the hunting club. The hunting club owned no interest whatever in the lands leased by Amick. The club was not a party to Amick’s lease, and it is not shown that any duly authorized agent of the hunting club ever at any time had any contact with Amick. Amick did not at any time pay to the hunting club one dime in consideration of anything. To say that the hunting club had no right to control the flow of water onto its grounds might destroy the usefulness of the property for the very purpose for which it was purchased.
■■Leo Wilson & Co. sold the land to the hunting club with--the obstruction across Greasy Slough in place. It could hardly be contended that the company could now comedn and say “remove the obstruction.” In fact, no one' 'contends that the company would have any such right; and if the company does not have the right to require-Greasy Slough Outing Club to remove the obstruction, its-tenant does not have that right.
Therefore, in my opinion, Amick, the tenant of Lee Wilson. & Co., has no cause of action whatever against the Greasy Slough Outing Club.