Page:North Dakota Reports (vol. 48).pdf/193

 son in many preceding years, which were more than equal, in the amount of water precipitated, to the storm in question.

In addition to showing that the storm was unusual and extraordinary, it should be made to appear by the pleading and the proof, and at least by the proof, that the storm was of such unusual and extraordinary character that it could not have been reasonably anticipated. Or, in other words, that it could not be expected that such a rainstorm would occur in that vicinity. The defendant has not pleaded this latter element, and has not offered proof to establish it.

In the case of Reichert v. Northern Pacific Ry. Co., 39 N. D. 114, 167 N. W. 127, in an able opinion written by then Chief Justice Bruce, the following language is used:

“The question, to our mind, is one of notice and warning, more than it is of an unusual or extraordinary storm. And although the point is a close one, we do not feel justified in interfering with and overruling the finding of the jury in this respect. * * *

“We must, indeed, hold to what we believe to be the prevailing American rule, that the defense in such cases can only be that of vis major, or the act of God, and that the act of God in its legal sense applies only to events in nature so extraordinary that the history of the climatic variations and other conditions in the particular locality affords no reasonable warning of them, and that damages cannot be avoided on the grounds that the flood was an act of God, where, from geographical and climatic conditions, the flood might have been anticipated, though it occurred infrequently.”

We think there was no error in the instruction, as it merely defined to the jury the legal duty of the defendant to provide for the escape of waters from usual and ordinary rains, but as well from extraordinary rains, where they were such as might reasonably be expected to occur in that vicinity.

Mr. Moomaw, superintendent of the State Experiment Farm at Dickinson, produced his records and showed that, in the years from 1907 to 1918, both inclusive, there were nine different rainstorms, which in amount of precipitation equaled or exceeded the one under consideration.

Witness Soules, who has owned the premises in question or a part of them, since 1907, testifies as to the flooding of the premises in the years 1907, 1909, and 1912.