rounding lands, making a lake or pond of some 10 or 15 acres, which was retained there by the natural conformation of the land until absorbed or evaporated; that the defendant caused a ditch to be excavated of such depth and extent as to drain said depression and cause the water accumulating there to immediately flow off through such drain, which it did at the time complained of, and over and onto the premises of plaintiff, destroying his crop there growing, and for which he asked judgment in damages.

The case was tried to the court without a jury, at the conclusion of which trial the defendant requested special findings of fact by the court, which were accordingly made as follows:

"In the District Court of Blaine County, Oklahoma Territory, November Term, 1902. R. D. Fry, Plaintiff, v. Alice Davis, Defendant. Findings of the Court.

"Now on this 4th day of December, 1902, the court, after hearing the evidence, argument of counsel, and being fully advised in the premises, and after a personal inspection of the premises by the judge, as per request of parties, finds the following facts: "(1) That the plaintiff, R. D. Fry, as the renter, was in possession of the northwest quarter of the northwest quarter of section 17, township 16, range 11, Blaine county, Oklahoma Territory, and in the lawful and peaceable possession thereof.

"(2) That in the spring of 1901 plaintiff plowed, prepared, and planted said land to

corn.

"(3) That until and on the 12th day of May, 1901, said crop was in a good and prosperous condition.

"(4) That plaintiff, under his lease, was to pay as rent for said land one third of said crop, and that plaintiff had a two-thirds interest in said crop.

"(5) That on the 12th day of May, 1901, prior thereto, and ever since, the defendant, Alice Davis, was and is the owner of the southwest quarter of section 8, township 16, range 11, in said county.

"(6) That in the spring of 1901, and while the defendant was the owner and in posseșsion of said southwest quarter of section 8, township 16, range 11, the defendant caused to be dug a ditch from a large pond located on her land, across and over her said lands, and into the public highway between the land of defendant and the land of plaintiff, upon which plaintiff's crop was growing.

"(7) That said pond on defendant's land had and has no natural outlet, and at various times of the year is filled with water from a large area of surrounding country, leaving a large body of water in said lake, from one to two and a half feet deep, and covering about fifteen acres.

"(8) That said ditch was cut by the defendant for the purpose of draining the water from said pond.

"(9) That the defendant, by the cutting of said ditch, turned all the water in said pond into and through said ditch, over and across the highway, and upon the land leased by plaintiff, and upon which his crop of corn was cultivated and growing, caused the same to be inundated and covered with water to the depth of several inches, and thereby destroyed a portion of plaintiff's crop of corn, to the amount of about fifteen acres.

"(10) That the water remained on said land, and continued to run through said ditch from said pond, until stopped by the order of injunction of this court.

"(11) That said ditch is about fifty rods long, commencing upon defendant's land from said pond, over and across defendant's line, and across the south line thereof, and to within forty-eight feet of plaintiff's corn ground.

"(12) That said ditch was cut through a hill from two and a half to three feet higher than the bottom of said pond.

"(13) That said ditch was not cut over a natural outlet from said pond.

"(14) That said pond is filled from the drainage of the surface water from the surrounding lands, and the water stands and remains until the same evaporates and sinks away in the ground.

"(15) That there was no considerable body of water in said pond when said defendant caused the ditch to be dug.

"(16) That said ditch did not fill with water until May 12, 1901, and that the same filled at that time as the result of a heavy rain and hail storm.

"(17) There were no ditches or other artificial means used to control or collect the water that was gathered in the pond thereon by defendant.

"(18) That said pond was not fed or supplied by any spring, streams, swamps, or lakes, but only by rain, hail, and snow falling on the surrounding lands, which was conducted into the said pond by the natural surface of the country surrounding it.

"(19) The grass growing in said pond is what is commonly known as 'pond grass,' of no value for pasturage, and the land covered thereby is what is commonly known as 'gumbo' or 'hardpan,' and of no value for cultivation of crops or tillage.

"(20) The said diten was from two and a half to three feet wide at the top, and from eighteen inches to two feet at the bottom, and was filled with water flowing from said pond from the evening of May 12th until stopped by the order of injunction of this court.

"(21) That plaintiff, while said ditch was

being constructed, warned the defendant of the danger of damage to him, and on the 17th day of May, 1901, secured an order of injunction from this court, preventing defendant from maintaining said ditch, causing the saine to be closed.

said pond, has sustained damage in the sum of $100.

"Conclusion: The court therefore concludes that the issues are with the plaintiff herein against the defendant herein, Alice Davis, and that plaintiff is entitled to judg

"(23) That the hail and rains of May 17, 1901, and subsequent thereto, fell upon plaintiff's corn crop to about the same degree as that which fell upon defendant's land, and that said rain and hail was damaging to vegetation, and that at said time plaintiff's corn, being very young, and where not drowned by the water flowing from said ditch, soon recovered, and yielded about 26 bushels of corn per acre.

“(24) That the tract of land upon which plaintiff's corn was growing is smooth, slightly sloping to the east, and not subject to overflow from natural causes, and the crops thereon had not been damaged in years previous and subsequent to that of 1901, except, possibly, in a small buffalo wallow thereon.

"(25) That water that collected on plain tiff's corn had only partially run off and sunk down by Sunday, May 19, 1901, and after the ditch was dammed on May 17, 1901. “(26) The rains of Sunday evening and Monday, May 19 and 20, 1901, by reason of the water then standing in plaintiff's corn land, again caused plaintiff's corn to be covered and flooded with water.

the sum of $100 as damages sustained, and costs of suit."

Upon the facts so found the court rendered judgment in favor of plaintiff in the sum of $100 for damages sustained, and costs. Defendant brings the cause to this court, alleging error of law.

Messrs. Payne & Bennett, for plaintiff in error:

The injury complained of does not constitute a legal injury under the law.

Gray v. McWilliams, 98 Cal. 157, 21 L. R. A. 593, 35 Am. St. Rep. 163, 32 Pac. 976; Ogburn v. Connor, 46 Cal. 546, 13 Am. Rep. 213, 22 Pac. 216; McDaniel v. Cummings, 83 Cal. 515, 8 L. R. A. 575, 23 Pac. 795; Lamb v. Reclamation Dist. No. 108, 73 Cal. 125, 2 Am. St. Rep. 775, 14 Pac. 625; Peck v. Goodberlett, 109 N. Y. 180, 16 N. E. 350; West Cumberland Iron & Steel Co. v. Kenyon, L. R. 6 Ch. Div. 773; Sheehan v. Flynn, 59 Minn. 436, 26 L. R. A. 632, 61 N. W. 462; Gilfillan v. Schmidt, 64 Minn. 29, 31 L. R. A. 547, 58 Am. St. Rep. 515, 66 N. W. 126; Burnett v. Great Northern R. Co. 76 Minn. 461, 79 N. W. 523; Jungblum v. Minneapolis, N. U. & S. W. R. Co. 70 Minn. 153, 72 N. W. 971; Connell v. Stark, 108 Wis. 92, 83 N. W. 1092; Brown v. Winona & S. W. R. Co. 53 Minn. 259, 39 Am. St. Rep. 603, 55 N. W. 123; Gannon v. Hargadon, 10 Allen, 109, 87 Am. Dec. 625; Chadeayne v. Robinson, 55 Conn. 350, 3 Am. St. Rep. 55, 11 Atl. 593;

"(29) That the land upon which plaintiff's crop was growing is now occupied by Sisto Seschetti, who now has a crop of wheat growing thereon.

"(30) There was evidence of the value of plaintiff's corn crop during the month of May, 1901, adduced to show the value at that time by comparison with the remainder of the crop produced.

"(31) This action was originally brought against Frank Krahn, Will Davis, and Alice Davis as defendants. Frank Krahn and Will Davis were wholly discharged by this court at the April term, 1902.

"(32) The plaintiff could have replanted his corn after May 25, 1901, but it would not have been ordinarily prudent, or with the expectation of realizing for his efforts.

"(33) The court finds that the plaintiff, by reason of the construction of said ditch by defendant and the drainage of water from

Am. Rep. 139; Morrison v. Bucksport & B. R. Co. 67 Me. 355; Morrissey v. Chicago, B. & Q. R. Co. 38 Neb. 406, 56 N. W. 946, 57 N. W. 522; Bowlsby v. Spcer, 31 N. J. L. 351, 86 Am. Dec. 216; Benson v. Chicago & A. R. Co. 78 Mo. 504; Angell, Watercourses, §§ 94-135; Taylor v. Fickas, 64 Ind. 173, 31 Am. Rep. 114.

Surface water has been called a common enemy, which each owner may get rid of as best he may.

O'Brien v. St. Paul, 25 Minn. 335, 33 Am. Rep. 470; Brown v. Winona & S. W. R. Co. 53 Minn. 259, 39 Am. St. Rep. 603, 55 N. W. 123; Gannon v. Hargadon, 10 Allen, 106, 87 Am. Dec. 625; Morrison v. Bucksport & B. R. Co. 67 Me. 355.

The owner of land may improve it either by erection of buildings or other structures thereon, so as to cause surface water accumulating there by rains and snows falling on the surface to stand in unusual quantities

nant tenement, upon which is a natural depression which receives and holds during a rainy season surface water which collects there from the natural drainage of quite a large scope of adjacent territory, and from which there is no natural outlet, and beyond which there is no ravine or surface indication of a natural water course, when such depression is full to overflowing. The depression contains 15 to 20 acres of ground flooded in times of heavy rainfall. The plaintiff in error caused a ditch to be dug so as to drain this depression and discharge the water therefrom over and onto defendant's crop on the adjoining premises, destroying the same. The right of such drainage by the plaintiff in error is the point in issue.

The court in that case distinguish such conditions from inundations by rainfall, which in Ogburn v. Connor, 46 Cal. 346, 13 Am. Rep. 213, was defined as follows: "When two parcels of land belonging to different owners are adjacent to each other, and one is lower than the other, and the surface water from the higher tract has been accustomed by natural flow to pass off over the lower tract, the owner of the lower tract cannot obstruct this flow. The owner of the upper tract has an easement to have the water flow over the land below, and the land below is charged with a corresponding servitude." And this, the court says, is intended as a statement of the common-law rule, but it is probably a better statement of the civil law.

The case of McDaniel v. Cummings, 83 Cal. 515, 8 L. R. A. 575, 23 Pac. 795, was an action concerning land in the Sacramento River Valley. The land next to the river is highest, and when, in a rainy season, that river overflows, the valley beyond is inundated, to prevent which a landowner proceeded to erect an embankment to prevent such overflow, which caused such overflow water to set back upon the plaintiff's lands, causing it to cover a larger area thereof for a longer period than it otherwise would. The court, in determining that case, held that the landowner had a right to protect himself against water overflowing from the river, following the English case of King v. Sewer Comrs. 8 Barn. & C. 355, with respect to waters of the sea. viz., that they are a "common enemy" against which every man has a right to defend himself, regardless of the fact that the barriers he erects may cause the flood to rise higher or flow with greater force upon his neighbor. The court, in the course of its opinion. says: "If the owner of the land next to the river will not, either by himself or in combination with those behind him, erect a levee on the bank, he ought not to be allowed to prevent them from protecting themselves merely because by so doing they prevent his higher land from being drained of the flood waters as rapidly as it otherwise would be."

in stating the rule, bases it upon surface water from the higher tract, which has been accustomed by a natural flow to pass off over the lower tract. The words "natural flow," here used, clearly distinguish that case from the one under consideration. And the facts in McDaniel v. Cummings are clearly distinguishable from the case under consideration, because in this we have only to consider surface water descending from the clouds. These questions were again brought before the supreme court of California in Gray v. McWilliams, 98 Cal. 157, 21 L. R. A. 593, 35 Am. St. Rep. 163, 32 Pac. 976, in which the rule in each of the cases of Ogburn v. Connor and McDaniel v. Cummings is by that court reaffirmed. In the opinion of the court, however, speaking by Searls, J., they say: "In the case of surface waters having no defined channel of escape, and the owner of the land upon which they are found being impotent to rid himself of their presence, the law wisely provides that the laws of nature shall be left untrammeled in their disposition." The last statement of the California court brings us very close to the case under consideration, for here we have a case in which the accumulating surface water has no defined channel of escape, and, if one is made, it must be in addition to what nature has provided.

Counsel for plaintiff in error has called this court's special attention to the case of Sheehan v. Flynn, 59 Minn. 436, 26 L. R. A. 632, 61 N. W. 462, as being a case closely in point, and say that the court held in that case that the drainage of surface water to and upon the premises of another does not constitute a tort or an actionable wrong. We are unable to get such meaning from the