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Lessard vs. Stram and others.

water there, except when it had been raining it ran off." Another witness says: "I never saw any water there except

after a rain. Sometimes after a rain the water ran in there for two or three days."

The evidence in this case brings this alleged watercourse clearly within the rule laid down by this court in the case of Hoyt v. Hudson, 27 Wis. 656, and it is not such a watercourse as is protected by the law, and for the obstruction of which damages may be recovered by a person injured by its obstruction. In the opinion of this court in that case of Hoyt v. Hudson, Chief Justice DIXON says: "The term 'watercourse' is well defined. There must be a stream usually flowing in a particular direction, though it need not flow continually. It may sometimes be dry. It must flow in a definite channel having a bed, sides, or banks, and usually discharge itself into some other stream or body of water. It must be something more than a mere surface drainage over the entire tract of land, occasioned by unusual freshets or other extraordinary causes. It does not include the waters flowing in hollows or ravines in land, which is the mere surface water from rain or melting snow, and is discharged through them from higher to lower levels, but which at other times are destitute of water. Such hollows or ravines are not in legal contemplation watercourses." The learned chief justice then gives a brief abstract of the evidence in that case as to the nature of the watercourse then in question. See pages 661, 662. Such abstract of the evidence shows that the stream in that case was of the same temporary character as the one in question in the case at bar, and that evidence had certainly as strong a tendency to establish the fact of a watercourse as the evidence in the case at bar. After stating the evidence, the learned chief justice, speaking for the court, says: "Such is a statement of all the testimony as given by the witnesses themselves, from which we think it clearly appears that it was a mere occasional flow

Lessard vs. Stram and others.

of surface water down the ravine or hollow in question, which was obstructed by the agents and officers of the city, and not a stream or watercourse within the meaning of the law on that subject." The rule adopted by this court as to the right of a land-owner to obstruct the flow of surface water upon his land is stated by the chief justice in the following language: "The proprietor of an inferior or lower tenement or estate may, if he choose, lawfully obstruct or hinder the natural flow of such water thereon, and in so doing may turn the same back upon or off on to or over the lands of other proprietors without liability for injuries ensuing from such obstruction or diversion."

The case at bar is, in all its material facts, the same as the case above cited, and must be governed by it. The water obstructed by the defendants, and turned from their lands upon the lands of the plaintiff, was surface water. They did not permit the surface water to collect in large quantities upon their lands, and then discharge them in unusual quantities upon the lands of the plaintiff, so as to bring the case within the rule laid down in the case of Pettigrew v. Evansville, 25 Wis. 223; they simply fenced against the surface water from adjoining lands, as they had the right to do; and if in so fencing against such water it was diverted upon the plaintiff's land, he has no action against the defendants. The acts of the defendants being lawful in the eye of the law, any injury suffered by reason of such lawful acts is not a good ground for an action.

The rule laid down by this court in Hoyt v. Hudson, above cited, has been adhered to in the following cases: Pettigrew v. Evansville, 25 Wis. 223, 238, 239; Fryer v. Warne, 29 Wis. 511; Eulrich v. Richter, 37 Wis. 226; Allen v. Chippewa Falls, 52 Wis. 434; O'Connor v. F. du L., A. & P. Ry Co. 52 Wis. 530; Hanlin v. C. & N. W. R'y Co. 61 Wis. 515. We see nothing in the facts of this case which would justify us in making it an exception to the general and well

Wachter vs. Famachon.

established rule of this court upon the real question in issue. between the parties. It follows that the nonsuit was properly ordered by the circuit court.

By the Court. The judgment of the circuit court is affirmed.

WACHTER VS. FAMACHON.

ZEIPRECHT VS. FAMACHON.

December 19, 1884—January 13, 1885.

ATTACHMENT: VOLUNTARY ASSIGNMENT. (1) Fraudulently incurring obligation: Renewal of notes. (2) Conveyance before assignment: Evidence of fraudulent intent.

1. A debtor who, by fraudulently representing himself to be solvent, obtains a surrender of his overdue notes and induces his creditor to accept new notes for the same amounts payable at a future day, fraudulently incurs an obligation, within the meaning of subd. 4, sec. 2731, R. S., and renders his property subject to attachment in an action on such notes.

2. The mere fact that a debtor has made a conveyance or mortgage with intent to prefer a particular creditor, within sixty days prior to a general assignment for the benefit of all his creditors, is not in itself, under sec. 2, ch. 349, Laws of 1883, evidence of an intent to defraud creditors.

APPEALS from the Circuit Court for Crawford County. The facts sufficiently appear from the opinion. The plaintiffs appealed from orders dissolving their attachments.

For the appellants there were briefs by Thomas & Fuller, and oral argument by Mr. Thomas.

For the respondent there were briefs by Wilson & Provis and W. II. Evans, and oral argument by Mr. Provis and Mr. Evans. They contended, inter alia, that the new notes took the place of the old ones, leaving the indebtedness unaffected by the transaction. Williams v. Starr, 5 Wis. 534; Tuthill v. Davis, 20 Johns. 285. The word "obligation "