Page:North Dakota Reports (vol. 48).pdf/194

 The evidence is sufficient to show, as we view it, that rainstorms, resulting in precipitation equal to or exceeding the one in question, have occurred annually or biennially since 1907, in this vicinity.

This is of such frequency as to impose a duty upon those who have constructed, or who may construct, an embankment across this natural drainway in this vicinity, to anticipate this character of rainstorms as they reasonably may be expected to occur in the vicinity in question, with reasonable regularity, either annually, biennially, or perhaps more often. Though such storms may be unusual and extraordinary, it cannot be said that they should not be anticipated and provision made for taking care of the surplus water precipitated by them, where they occurred with such regularity, and covering such an extensive period, as the evidence in this case shows.

This conclusion leads us to the consideration of the contention of the plaintiff, which is to the effect that the plaintiff cannot recover, by reason of inconsistencies between the special questions and the general verdict. The contention is pressed with much earnestness as to the first question supra.

It will be observed that the answer to that question determines that the rainstorm was an unusual and extraordinary one. But that question, nor no other question, determines that it was not such a rainstorm as should have been anticipated.

It must be presumed that the last instruction, above mentioned, was followed by the jury. It returned a verdict in favor of plaintiff, and therefore determined that the defendant should have anticipated the storm in question, or otherwise it would have found in defendant’s favor instead of against him.

It may be perfectly true that the storm was unusual and extraordinary, as the jury have said it was in their answer to question 1, and yet the defendant be just as liable in damages as if the storm had been an usual and ordinary one, if it were the duty of the defendant, under all the evidence in this case, to anticipate the character of the rainstorm, and the jury, in following the instructions of the court in this regard, have said by the general verdict that such was the duty of the defendant.

We, therefore, are of the opinion that there is no inconsistency between question 1 and the general verdict. On rehearing in Reichert v. Northern Pacific Ry. Co., supra, this court said:

“It is also the established law that surface waters, having an accus-