Page:North Dakota Reports (vol. 48).pdf/176

 I am authorized to say that Mr. Justice concurs in this opinion.

ROY E. HENDERSON, Respondent, v. WALKER D. HINES, Director General of Railroads, Appellant.

Waters and water courses — natural surface drainway held not subject to legal principles applicable to water courses.

1. A natural drainway serving the purpose alone of draining sur- face waters, but not otherwise possessing the constituent elements of a water course is not subject to the principles of law applicable to a water course.

Waters and water courses—easement theory of civil law imposing servitude on lower lands not applicable in North Dakota.

2. The common law principles applicable in this state and the conditions best suited to land development require rejection of the easement theory of the civil law imposing a servitude and property right upon lower lands subject to the reception of surface waters from a dominant tenement.

Waters and water courses—right of upper and lower landed proprietors protected under the rule sic utere tue.

3. The rights of both upper and lower landed proprietors are fully protected under the rule of law that permits the land owner to use and enjoy his land and dispose of hostile surface waters thereupon subject to the application of the principle “sic utere tuo.”

Waters and water courses—land owner liable for negligently obstructing natural drainway to injury of upper proprietor.

4. Under such principle of law, a duty is imposed upon the land owner which renders him liable for his negligent act in constructing an embankment or obstruction across a natural drainway so as to thereby impound or dam up flood waters upon the land of the upper proprietor.

Waters and water courses — negligence of railway company in obstructing natural drain held for jury.

5. Were a natural drainway serves purposes of conveying surface waters from a drainage area comprising some 168 acres in the city of