Page:North Dakota Reports (vol. 48).pdf/179

 P. 39, N. D.114, (supra) § 4 of syl.; Vol. 1 Sackett’s Inst. § 391 to § 397, Pp. 321 to 326. ‘There appears to be not even a shadow of objection to the instructions. 17 Cyc. 131 (V.) 5 Enc. of Evidence, 643; Laughlin v. Ry. 28 N. W. 873; Jones on Evidence, § 390 p. 491; 17 Cyc. 267 (3); 17 Cyc. 262 J. 269; 42 L. R. A. 753-762-764. 22 L. N. S. 1039. Commonwealth v. Leash (Mass.) 30 N. E. 163; § 4 Syl. (See bottom half of last column p. 164.)

, J. This is an action for damages caused by flood waters. The defendant has appealed from a judgment entered upon a general verdict and special questions submitted to the jury. The identical property that was involved in Soules v. N. P., 34 N. D. 8, 157 N. W. 823, L-R.A. 1917A, 501, is involved in this action. The same drainage area and the same drainway that were involved in Soules v. N. P., supra, Boulger'v. N. P., 41 N. D. 316, 171 N. W. 633, and Reichert v. N. P., 39 N. D. 114, 167 N. W. 127, are likewise concerned. In the three cases mentioned damages were asserted through a storm which occurred on July 28, 1914. In this action damages are claimed for a storm that occurred on August 21, 1918. In the Reichert and Boulger cases, supra, the properties involved were located about a block, westward or northward, from the property involved herein. The following facts appear in the record:

Under conditions in a state of nature, prior to the development and growth of the city of Dickinson, as well as the construction of the defendant railway, there existed a territory composing a part now of the city of Dickinson and comprising about 168 acres, which naturally drained into a so-termed drainway southeasterly across the right of way of the defendant, and thence into the Heart river. In the growth and development of the city this drainage area has been platted into blocks and streets with connecting sewer facilities, grading of streets, curbs, gutters, ditches, and culverts. In this drainage area, plaintiff’s leased property (lot 13, block 5) is situated, fronting upon Villard street, which abuts upon and parallels defendant’s right of way. Comparatively considered, this drainage area, block 5, is rather low and flat, the grounds to the northward and westward sloping and being higher. The surface waters accordingly flow from the northward or westward along or towards block 5 southeasterly, where eventually they passed through this drainway into the Heart river. The defendant, in the improvement of its right of way several years ago, removed a bridge over this drainway, and has filled up the lands in the low places around this drainway, and installed a cast iron culvert under its