Some time during the year 1909, the board of county commissioners of Ramsey county, acting under the general drainage statutes of the state, completed thе construction of a public ‘ditch, theretofore ordered laid for the purpose of draining certain lands lying in the vicinity of Gervais lake in that county. The drain was an open ditch until it reached Arcade street where the waters wеre turned into a sewer, constructed under that street as a part of the drain, and thence again in >an open ditch to Gervais lake. It was discovered some 4 or 5 years later that the sewer under the street was inadequate tо take care of the waters collected in
In the spring of 1916 the waters came down this new route, and with such violence as to wash away the banks of plaintiff’s land, and to сarry gravel and débris over and deposit the same upon the low parts therеof. She brought this action for damages and had a verdict for $219. Defendant aрpealed from an order denying its motion for judgment or a new trial.
The court bеlow held, and the introduction of evidence was limited accordingly, that the act of defendant in diverting the waters from the original channel and causing them in time of high water to flow upon and against the land of plaintiff was a trespass, subjecting defendant to liability without regard to the question of negligence. Our examination of the record leads to the same conclusion.
It is not a casе where consequential injury results from negligence in the rightful improvement of a public street or highway. But rather one where injury results from the wfongful act of diverting the flow of surface waters, collecting them in an artificial channel and cаsting them in destructive quantities upon private property. The record furnishes no basis for a conclusion that the change in the course of the drain was necessary to effect the improvement of the street; in fact it seems clear that other methods could have been adopted which would not have resulted in injury to the property of ony one. The facts bring the case within the rule stated and applied in O’Brien v. City of St. Paul,
There appears to have been no request that the triаl court submit to the jury the question whether the flow of water on the occasion of the injury was so extraordinary and unusual as to relieve defendant of resрonsibility, and we discover no reason for holding as a matter of law that defendant was not bound to anticipate the probable appearance of the quantity of water here shown. Section 5565, G. S. 1913, does not apply.
Order affirmed.