The channel and banks formed by the flowing of the waters must present to the eye, on a casual glance, the unmistakable evidence of the frequent action of running Ill. 164, 16 N. E. 232; Hicks v. Silliman, 93, 729, 27 Pac. 7; Mitchell v. Bain, 142 Ind. Ill. 255; Mellor v. Pilgrim, 3 Ill. App. 476. | 614, 42 N. E. 230; Hoyt v. Hudson, 27 Wis. The owner of a natural pond or reser- 656, 9 Am. Rep. 473. voir, wherein the surface water from the surrounding land accumulates, and from which it has no means of escape, except by evaporation or percolation, cannot lawfully, by means of a ditch, discharge such water up-water. on the land of his neighbor, to his injury. Davis v. Londgreen, 8 Neb. 43; Fremont, E. & M. Valley R. Co. v. Marley, 25 Neb. 147, 13 Am. St. Rep. 482, 40 N. W. 948; Bunderson v. Burlington & M. River R. Co. 43 Neb. 549, 61 N. W. 721; Lincoln & B. H. R. Co. v. Sutherland, 44 Neb. 526, 62 N. W. 859. Palmer v. Waddell, 22 Kan. 352; Gibbs v. Williams, 25 Kan. 214, 37 Am. Rep. 241; Union P. R. Co. v. Dyche, 31 Kan. 120, 1 Pac. 243; Chicago, K. & W. R. Co. v. Morrow, 42 Kan. 339, 22 Pac. 413; Town v. Missouri P. R. Co. 50 Neb. 768, 70 N. W. 402; Drewett v. Sheard, 7 Car. & P. 465; Staffordshire & W. Canal Nav. Co. v. Bir The owner of land has the absolute, in-mingham Canal Nav. Co. L. R. I. H. L. 254; herent right to occupy and use it for such purpose as he sees fit, unmolested by the unlawful discharge of surface water thereon by another. Reynolds v. M'Arthur, 2 Pet. 417-438, 7 L. ed. 470-478; Bangor v. Lansil, 51 Me. 521; Earl v. De Hart, 12 N. J. Eq. 283, 72 Am. Dec. 395; Kauffman v. Griesemer, 26 Gilmore v. Armstrong, 48 Neb. 95, 66 N. Pa. 407, 67 Am. Dec. 437; Lessard v.Stram. W. 998. 62 Wis. 112, 51 Am. Rep. 715, 22 N. W. 284. A party has no right to collect surface water in a ditch or drain, and permit it to flow onto the land of another, without the latter's consent; and, if he does so, he will be liable for the damages sustained. Fremont, E. & M. Valley R. Co. v. Marley, 25 Neb. 138, 13 Am. St. Rep. 482, 40 N. W. 948; Lincoln Street R. Co. v Adams, 41 Neb. 745, 60 N. W. 83; Jacobson v. Van Boening, 48 Neb. 83, 32 L. R. A. 229, 58 Am. St. Rep. 684, 66 N. W. 993; Fremont, E. & M. Valley R. Co. v. Harlin, 50 Neb. 713, 36 L. R. A. 417, 61 Am. St. Rep. 578, 70 N. W. 263; Rychlicki v. St. Louis, 14 Am. St. Rep. 654, note, 98 Mo. 497, 4 L. R. A. 594, 11 S. W. 1001; Albany v. Sikes, 47 Am. St. Rep. 137, note, 94 Ga. 30, 26 L. R. A. 653, 20 S. E. 257. To an action against a continuing injury to. land caused by an unlawful discharge of surface water by an adjoining proprietor, it is no defense that the injury is in part threatened by the acts of another. Jacobson v. Van Boening,. 48 Neb. 80, 32 L. R. A. 229, 58 Am. St. Rep. 684, 66 N. W. 993. A water course is a stream of water usually flowing in a definite channel having a bed and sides or banks, and usually discharging itself into some other stream or body of water. Luther v. Winnisimmet Co. 9 Cush. 174. To constitute a water course it must be a stream in fact as distinguished from mere surface drainage occasioned by freshets or other extraordinary causes; but the flow of water need not be continuous. Pyle v. Richards, 17 Neb. 180, 22 N. W. 370; Town v. Missouri P. R. Co. 50 Neb. 773, 70 N. W. 402; Hinkle v. Avery, 88 Iowa, 53, 45 Am. St. Rep. 224, 55 N. W. 77; Simmons v. Winters, 21 Or. 40, 28 Am. St. Rep. The property of one citizen cannot be taken for the use of another, even if compensation is made. Bradshaw v. Omaha, 1 Neb. 16; Turner v. Althaus, 6 Neb. 54; Martin v. Fillmore County, 44 Neb. 719, 62 N. W. 863; Gould, Waters, 1900 ed. p. 487; Pumpelly v. Green Bay & M. Canal Co. 13 Wall. 166, 20 L. ed. 557; Shell v. Matteson, 81 Minn. 38, 83 N. W. 491. Land cannot be taken for a purely private purpose without regard to the public's good, as for a private drain, road, or mining claim, although compensation is made or tendered. Gould, Waters, 1900 ed. p. 482; Kaukauna Water Power Co. v. Green Bay & M. Canal Co. 142 U. S. 254, 35 L. ed. 1004, 12 Sup. Ct. Rep. 173; Missouri P. R Co. v. Nebraska, 164 U. S. 403, 41 L. ed. 489, 17 Sup. Ct. Rep. 130; Eaton v. Boston, C. & M. R. Co. 51 N. H. 504, 12 Am. Rep. 147; Ex parte Martin, 13 Ark. 199, 58 Am. Dec. 321; Cairo & F. R. Co. v. Turner, 31 Ark. 494, 25 Am. Rep. 564; Sullivan v. Cline, 33 Or. 260, 54 Pac. 154; New England Trout & Salmon Club v. Mather, 68 Vt. 338, 33 L. R. A. 569, 35 Atl. 323; Fleming v. Hull, 73 Iowa, 598, 35 N. W. 673; Priewe v. Wiscon sin State Land & Improv. Co. 93 Wis. 534, 33 L. R. A. 645, 67 N. W. 918. Drainage beneficial to two parties is not a public use. McQuillen v. Hatton, 42 Ohio St. 202; Fleming. v. Hull, 73 Iowa, 598, 35 N. W. 673. Messrs. Charles H. Sloan and F. W. Sloan, for appellee: An owner has the right to protect his land from surface water, and, in the inter est of good husbandry, to drain lagoons or | character of the basin or pond upon the debasins thereon of a temporary character | fendant's land, and the manner of discharge by discharging such surface water by means upon the land of the plaintiff, are very simiof artificial channels into a natural surface- lar to those in the case of Todd v. York water drain on his own property, and County (Neb.) 66 L. R. A. 561, 100 N. W. through such drain or channel, on and over 299. The only apparent distinction between the land of another, provided such person the two cases as to the facts is that in the acts in a reasonable and careful manner Todd Case the ditch followed the direction and without negligence. of the natural drainage, and that, if the pond or basin had been filled up, the water of the same would have followed the same course as it was made to follow by the digging of the ditch; while in the instant case the evidence fails to show with any certainty where the water would flow in such case, though the greater weight of the evidence tends to show that the lowest point on the rim was on the south side of the pond on Howarth's land, and beyond plaintiff's east line, so that the water in such case would not reach plaintiff's land. Todd v. York County (Neb.) 66 L. R. A. 561, 100 N. W. 299; Rath v. Zembleman, 49 Neb. 351, 68 N. W. 488; Jacobson v. VanBoening, 48 Neb. 84, 32 L. R. A. 229, 58 Am. St. Rep. 684, 66 N. W. 993; Morrissey v. Chicago, B. & Q. R. Co. 38 Neb. 406, 56 N. W. 946, 57 N. W. 522; Beatrice v. Leary, 45 Neb. 149, 50 Am. St. Rep. 546, 63 N. W. 370. Letton, C., filed the following opinion: The plaintiff brought this action to enjoin the defendant from discharging surface waters which accumulated in a pond upon the defendant's land through a ditch onto and over the lands of the plaintiff. The defendant is the owner of the west half of the northwest quarter of a certain section of land in Fillmore county, and the plaintiff owns 160 acres lying south of it. Upon a portion of the defendant's land there is a depression which extends to the eastward over the land of an adjoining proprietor, named Howarth. The larger portion of this depression or basin is upon the land of Howarth, and, in times of wet weather or of melting snows, the basin is filled with water, which covers 35 or 40 acres to a depth of 3 feet or more at the deepest point; about 10 or 15 acres being on defendant's lands. In dry seasons the basin is dry. There is no natural outlet, and the only way of escape for the water is by evaporation or percolation. On the land of the defendant a small natural water way or channel takes its rise; extending in a southerly direction to the land of the plaintiff, and finding its outlet into a larger depression or water way extending in a southeasterly direction over the plaintiff's land, and finally draining into a natural water course called "Turkey creek," some miles distant. This depression upon the plaintiff's land has been in cultivation for over twenty years. The defendant dug a ditch entirely upon his own land through a slight rim or rise of land between the pond and the natural water way or "draw," as locally styled, which leads to the plaintiff's land; thereby draining the water from the pond into the natural water way upon his own land, and thus into and across that portion of the plaintiff's cultivated land which occupies the water way or depression before mentioned. The facts with reference to the Under the rule in the Todd Case, which seems to be the rule of both the civil and the common law (3 Farnham, Waters, §§ 889ac; also note by H. P. Farnham to Todd v. York County, 66 L. R. A. 561), an owner of land has the right to drain ponds or basins thereon of a temporary character by discharging the waters thereof, by means of artificial channels, into a natural surface water drain on his own property, and through such drain over the land of another proprietor, even though the flow in such natural drain is thereby increased over the lower estate, provided he acts in a reasonable and careful manner and without negligence; but he cannot divert the flow of the water in a different direction from the natural course of drainage. An interesting discussion as to the law in such case is to be found in the sections of Farnham on Waters above cited. The instant case presents the question whether the owner of lands, upon which a large quantity of surface water often stands in a pond or basin, may by artificial means cut through the natural barrier which prevents it from reaching the lands of an adjoining proprietor, and drain it into a natural water way on his own land, and thereby cast a new burden upon the adjoining estate, which the water previously could not reach. It is argued for the plaintiff that this case is identical with the facts in the case of Davis v. Londgreen, 8 Neb. 43, and that the rule applies (laid down in that case) that the owner of a natural pond or reservoir, wherein the surface water from the surrounding land accumulates, and from which it has no means of escape except by evaporation or percolation, cannot lawfully, by means of a ditch, discharge such water upon the land of his neighbor, to his injury. In that case, however, so far as appears from the report, the defendant discharged | damage; but if, in the execution of such the waters of a pond, by means of a ditch, enterprise, he is guilty of negligence, which not, as in this case, into a natural drain- is the natural and proximate cause of inage way upon his own land, thence flowing jury to his neighbor, he is accountable thereinto a larger channel of like nature on the for. land of the plaintiff, but directly into and over the land of Davis, so that it spread over several acres of the cultivated land and rendered it unfit for use, and so that it commenced to cut a water course across the same. There is a clear and marked distinction between the facts in this case and in that, and a general principle which may apply to that case cannot control this. On the other hand, the defendant contends that the rule in the Todd Case and in the case of Rath v. Zembleman, 49 Neb. 351, 68 N. W. 488, applies. In the state of Nebraska, whose surface consists of more or less rolling plains, the action of the elements has caused, by erosion, a system of natural drainage channels, locally termed "draws" or "ravines," usually beginning with a slight depression in the surface, and gradually deepening as they reach well-defined streams and water courses, which are, as compared with those of more humid states, comparatively few in number. These draws form natural drainage channels for surface water, and are largely instrumental in promoting the interests of agriculture and the healthfulness and salubrity of the climate, by furnishing an unsurpassed natural drainage system, and thus quickly removing from the soil any excess of moisture therein caused by excessive rains or melting snows. These channels are usually dry, but are often deep enough with running water after storms to swim a horse. They afford almost the only means of surface drainage available to the husbandman, and his right to the use of the same, reasonably exercised, should not lightly be impaired. We nave repeatedly said that the rule of this state with reference to surface waters is the rule of the common law, and that an owner may de fend 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 generai 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. Therefore, every proprietor may lawfully improve his property by doing what is reasonably necessary for that purpose, and, unless guilty of some act of negligence in the manner of its execution, will not be answerable to an adjoining proprietor, although he may thereby cause the surface water to flow on the premises of the latter to his As the water lay on Fleischauer's land, it rendered useless 10 to 15 acres of it, and the odors and exhalations from the stagnant water were noxious and annoying. A few rods away, upon his own land, was a natural drainage channel, leading in the general direction of the drainage of the immediate locality. He drained the pond by a small drain into this water way in such manner that no excessive quantity was precipitated at one time upon his neighbor's land. It is true, it rendered a portion of Aldritt's land untillable; but this was because the land lay in the channel of a natural water way, which from time immemorial had carried the drainage of the surrounding land as far as its branches reached. A proprietor cannot shut his eyes to the natural configuration of his land. His right of ownership is not entirely separate and disconnected from the rights of adjoining proprietors, and with it the law confers rights and imposes duties from which he cannot free himself. To the extent that surface water having an accustomed flow in a drainage channel or water way having well-defined banks may not be stopped by the erection of an enbankment across the channel, so as to divert the waters to the injury of adjoining proprietors, a modification of the broad rule laid down in the earlier cases in this state has been adopted by this court. Town v. Missouri P. R. Co. 50 Neb. 768, 70 N. W. 402; Chicago, R. I. & P. R. Co. v. Shaw, 63 Neb. 380, 56 L. R. A. 341, 88 N. W. 508: Missouri P. R. Co. v. Hemingway, 63 Neb. 610, 88 N. W. 673. These cases recognize the existence of the natural drainage channels which are common to the topography of this state, and apply the rule that th natural flow of surface water in the same cannot be interrupted by embankments in such manner as to divert the waters upon the lands of adjoining proprietors to their injury. Natural drainage channels exist to a greater or less extent in almost every locality. "That these drainage channels cannot be obstructed is supported by the great weight of authority. It is the rule in England, Canada, Ireland, Alabama, California, Delaware, Georgia, Illinois, Iowa, Kentucky, Louisiana, Maryland, Michigan, Minnesota, Mississippi, Nebraska, Nevada, New Jersey, North Carolina, Ohio, Oregon, Pennsylvania, Tennessee, Texas, Virginia, Vermont, and West Virginia;" citing cases under each jurisdiction. 3 Farnham, Waters, p. 2600. If these channels cannot be legally obstruct- | is immaterial, so long as the court protects ed, their use as water ways is recognized, the legal rights of individuals. and a reasonable use of their facilities is not wrongful. Co. 50 Neb. 768, 70 N. W. 402, "many of the distinctive attributes of a water course;" and we think he was justified in using the same in a reasonable manner, even though it resulted in injury to his neighbor, Aldritt. We think, therefore, that, if Aldritt cultivated the natural water way upon his The supreme court of Minnesota, in Shee- land, he did it knowing the contingencies han v. Flynn, 59 Minn. 436, 26 L. R. A. incident to its use in this manner. The 632, 61 N. W. 462, had before it a case in natural drainage channel existing upon his which the facts were almost identical with own land, and running thence through Althose in this case. In that case the court dritt's land, was apparently the only outexamines and distinguishes the prior cases let reasonably accessible to Fleischauer for in that state, and holds that, under the the drainage of the surface water. It prerule that an owner must so use his own assented, as is said in Town v. Missouri P. R. not unnecessarily or unreasonably to injure his neighbor, it is the duty of an owner draining his own land to deposit the surface water in some natural drain, if one is reasonably accessible; and he is entitled to deposit the same in such natural drain, though it is thereby conveyed upon the land of his We have so far considered the case withneighbor, if it does not thereby unreason- out reference to the law enacted in 1903, ably injure him. In that case, as in this, which provides that "owners of land it fairly appeared that the manner of drain- may drain the same in the general course of age pursued was the only way in which the natural drainage by constructing an open proprietor could reasonably drain the de- drain or ditch discharging the same into pression, and that the ravine or water way any natural water course, or into any in which the ditch emptied was the only natural depression or draw whereby it natural drain reasonably accessible. It al- will be carried into some natural water so further appeared that the consequent in- course; and, when such drain is wholly on jury to others was not so great, as com- the owner's land, he shall not be liable in pared to the benefit to be derived from the damage therefor to any person or corporaimprovement, as to make it unreasonable tion." § 5543, Cobbey's Anno. Stat. 1903. upon that account. The statement in the This enactment has been assailed as being Sheehan Case, as in Todd v. York County unconstitutional for several reasons. (Neb.) 66 L. R. A. 561, 100 N. W. 299, we have seen, this right exists independent that the "common-enemy" doctrine applies, of this statute, provided that it be exercised except as modified by the rule above stated, in a reasonable and proper manner, and is criticised by Mr. Farnham in the notes with due regard to the rights of lower proto those cases in the Lawyers' Reports Anno-prietors. It is unnecessary, therefore, to tated, and also in his recent work upon consider the vulnerability of the statute to Waters & Water Rights, vol. 3, p. 2598, the attack made by the appellant upon its in which valuable work there is a historic- validity. al examination and résumé of the English and American cases. However, it is not of so much importance to litigants to label a doctrine properly, as to apply its provisions; and whether we say that the rule in the Todd Case and in the Sheehan Case is For the reasons stated in the foregoing a modification of the common-law rule, or opinion, the judgment of the District Court that it is an adoption of the civil-law rule, | is affirmed. As We recommend that the judgment of the district court be affirmed. Ames and Oldham, CC., concur. Per Curiam: tioned in the order of court, or the judge cer pany as result from the nature of their tifying its execution, the bill is part of the duty and the powers vested in them by their record. 3. A cashier of a bank has no implied 4. A notarial notice of protest of non- to bind the estate. Louisiana State Bank v. Dumartrait, 4 La. Ann. 483; Smalley v. Wright, 40 N. J. L. 471; Beals v. Peck, 12 Barb. 245; Planters' Bank v. White, 2 Humph. 112, 36 Am. Dec. 305; Drexler v. McGlynn, 99 Cal. 143, 33 Pac. 773; Massachusetts Bank v. Oliver, 10 Cush. 557; Boyd v. City Sav. Bank, 15 Gratt. 501; Merchants' Bank v. Birch, 17 Johns. 25, 8 Am. Dec. 367; Stewart v. Eden, 2 Caines, 121, 2 Am. Dec. 222. The letters were introduced as mere admissions of the bank, by its cashier as an agent, as to a past transaction, and were and are, therefore, incompetent. Weigley v. Kneeland, 60 App. Div. 614, 69 N. Y. Supp. 657, Affirmed in 173 N. Y. 625, 65 N. E. 1123; United States Exp. Co. v. Rawson, 106 Ind. 215, 6 N. E. 337; Phelps v. George's Creek & C. R. Co. 60 Md. 536; Horner v. Fellows, 1 Dougl. (Mich.) 51; White v. Miller, 71 N. Y. 118, 27 Am. Rep. 13; Commercial F. Ins. Co. v. Morris, 105 Ala. 498, 53 Am. St. Rep. 139, 18 So. 34; Clunie v. Sacramento Lumber Co. 67 Cal. 313, 7 Pac. 708. The authority of officers of banks is restricted to such modes of binding the com note on the question, To whom should notice of protest or nonpayment be given after appointment of receiver, assignee, or other representative of insolvent? For a case in this series holding that a officers. Wyman v. Hallowell & A. Bank, 14 Mass. 58, 7 Am. Dec. 194; Salem Bank v. Gloucester Bank, 17 Mass. 21, 9 Am. Dec. 111; Mapes v. Second Nat. Bank, 80 Pa. 163; Bank of East Tennessee v. Hooke, 1 Coldw. 156; Hodge v. First Nat. Bank, 22 Gratt. 51. The directors of a bank must administer the affairs of the bank when created under the laws of this state, and each one is bound by the sanctions of his oath of office to do so. Code 1899, chap. 54, § 79. The cashier of a bank is but the agent of the corporation, and his acts are governed by the general rule for agents, viz., that, if they exceed his authority, they do not bind his principal. State v. Commercial Bank, 6 Smedes & M. 218, 45 Am. Dec. 280; Merchants' Bank v. Marine Bank, 3 Gill, 96, 43 Am. Dec. 300; Elliot v. Abbot, 12 N. H. 549, 37 Am. Dec. 227. The cashier attempted by his act to release a debtor of the bank from his obligation. This the cashier of a bank cannot do without authority so to do, given him by the bank for which he is acting. The release of a debtor is an act of ownership, and not of administration. Union Bank v. Bagley, 10 Rob. (La.) 43; Clinton & P. H. R. Co. v. Kernan, 10 Rob. (La.) 176; Union Bank v. Jones, 4 La. Ann. 236; Daviess County Sav. Asso. v. Sailor, 63 Mo. 24; Merchants' Bank v. Rudolf, 5 Neb. 527; Thompson v. McKee, 5 Dak. 172, 37 N. W. 367; Ecker v. First Nat. Bank, 59 Md. 291; Payne v. Commercial Bank, 6 Smedes & M. 24; Bank of East Tennessee v. Hooke, 1 Coldw. 156; Hodge v. First Nat. Bank, 22 Gratt. 51. Persons dealing with the cashier of a bank are chargeable with knowledge of the extent or limit of his powers. Jemison v. Citizens' Sav. Bank, 122 N. Y. 135, 9 L. R. A. 708, 19 Am. St. Rep. 482, 25 N. E. 264; Farmers' & M. Bank v. Troy City Bank, 1 Dougl. (Mich.) 457. The act in question was, in effect, the settlement and discharge of a debt by the acceptance of a promise or new note made This the by the maker of the old note. cashier had no power or authority to do. Bank of Commerce v. Hart, 37 Neb. 197, 20 L. R. A. 780, 40 Am. St. Rep. 479, 55 N. person dealing with the cashier of a bank is chargeable with knowledge of the extent of his authority, see Jemison v. Citizens' Sav. Bank, 9 L. R. A. 708. |