Page:North Dakota Reports (vol. 48).pdf/187

 purposes for which these artificial creations were constructed. In this connection it is to be observed, measuring the duty and liability of the defendant, that the drainage area itself has been subjected to artificial conditions in the erection of numerous buildings and in the creation of streets and avenues which add or detract from run-off conditions as they may have existed in a state of nature.

In our opinion the judgment should be reversed, and a new trial granted.

, C. J., concurs.

, J., (concurring specially). I concur in the reversal of the judgment. And I agree with Mr. Justice that—

This action “is essentially one concerning the disposition and removal of surface waters and for damages by reason of failure to properly provide for methods of disposition and removal.”

I also agree with him that the evidence in this case does not establish that the so-called drainway involved here is a water course, and that such evidence, construed most favorably to the plaintiff, merely shows that the so-called drainway or run-off channel as it existed in its natural state “served simply the purpose of carrying off surface waters from the drainage area involved herein as it then existed in a state of nature.” I also agree that the liability of the defendant in this case, if any, is not determinable by the application of the so-called civil law rule.

As pointed out in the opinion prepared by Mr. Justice , much litigation has come before this court concerning the same drainage area and drainway which are involved here. An examination of the decisions in the various cases will disclose that they were all brought and tried on the theory that the defendant had been guilty of negligence; i. e., they were brought and tried on theory that in order to recover the plaintiff must establish that his loss had been caused by the negligence of the defendant. In my dissenting opinion in Reichert v. N. P. R. Co., 39 N. D. 114, 150, 167 N. W. 127, 139, I stated that I had concurred in the opinion, affirming a verdict against the railway company, in Soules v. N. PLR. Co., 34 N. D. 7, 157 N. W. 823, L. R. A. 1917A, 501, for the reason that—

“I believed that under the evidence in that case it was for the jury to say whether the defendant was negligent in constructing its culvert;