O'Connor vs. The Fond du Lac, Amboy & Peoria R'y Co. Wood on the method which would obviate the nuisance. Nuisances, 782; Mathers v. Water Works, 3 Camp., 402; Waterman v. R. R. Co., 30 Vt., 610; Lawrence v. Railway Co., 4 Eng. L. & Eq., 265; Hamden v. R. R. Co., 27 Conn., 158; Johnson v. R. R. Co., 35 N. H., 567. Where an act done under legislative authority creates a nuisance, the legislative grant is no protection against a private action for damages. Wood on Nuisances, 789, 792-3; Hatch v. R. R. Co., 25 Vt., 67. The method of construction of the railroad amounts to an abridgement of plaintiff's right incident to her property, and so operates as an appropriation of the property. Goodall v. Milwaukee, 5 Wis., 32. The principle is the same whether the owner is wholly deprived of the use of his land or only partially deprived of it. Eaton v. Railroad, 12 Am. Rep., 147; S. C., 51 N. H., 504; 18 Wis., 428; 24 id., 422; 31 id., 428; Pumpelly v. Green Bay Co., 13 Wall., 166; Arimond v. G. B. & M. Canal Co., 31 Wis., 316; Pettigrew v. Evansville, 25 id., 223. 4. The demurrer admits the allegation that this is a "ditch, drain or watercourse." If the last, it is within the very words of the statute, and the complaint is clearly sufficient. If the pleading is not sufficiently definite and certain, the remedy is not by demurrer but by a motion. Whether this is in fact a natural watercourse, within the definition of that term, will not be determined on demurrer, but is a question of fact for a jury. See Eulrich v. Richter, 37 Wis., 226; S. C., 41 id., 318; 27 id., 656. The cause was submitted for the respondent on the brief of Geo. P. Knowles. He argued that the owner of higher ground has no such natural easement as entitles him to discharge surface water over the land of another. Pettigrew v. Evansville, 25 Wis., 223; Eulrich v. Richter, 37 id., 229; Hoyt v. Hudson, 27 id., 656; Fryer v. Warne, 29 id., 511. COLE, C. J. The gravamen of the complaint is, as we interpret its allegations, that the defendant company, in making VOL. LII-34 O'Connor vs. The Fond du Lac, Amboy & Peoria R'y Co. its road-bed, filled up a ditch, which drained or carried the surface water from the plaintiff's premises to the river. We do not understand that any stream of water, or watercourse proper, was interrupted, crossed or changed by the company in building its road, though there is some language which would almost warrant such an inference. But the better, and, as we think, true construction of the complaint is, that the action is brought for damages caused the plaintiff in consequence of the defendant filling up a drain by its road-bed in the vicinity of the plaintiff's land, "thereby preventing the free passage of the surface water from her premises and the adjoining lands eastward to the river." Assuming this to be the cause of action intended to be stated, the question arises, Does it show a legal injury? We are of the opinion that it does not. True, it is averred that the company, unmindful of its duties in that regard, wrongfully and negligently filled up a culvert which it first built in its road-bed, and thus stopped the flow of water through the ditch. But this only raises the question whether the defendant was bound to provide a way for the escape of mere surface water from the plaintiff's premises. That question has already been settled in this state adversely to the claim of plaintiff. In Hoyt v. City of Hudson, 27 Wis., 656, it was in effect decided, that, under the rule of the common law which exists here, an owner has the right to obstruct and hinder the flow of mere surface water upon his land from the land of other proprietors; that he may even turn the same back upon or onto the land of his neighbor, without incurring liability for injuries caused by such obstructions. The same doctrine was laid down in Pettigrew v. Village of Evansville, 25 Wis., 223, where the question is very fully considered; also in Fryer v. Warne, 29 Wis., 511. There is a discrepancy in the decisions of the different states upon this subject, because some follow the rule of the civil law, which gives a servitude on the lower in favor of the superior estate. But here the rule of the common law has O'Connor vs. The Fond du Lac, Amboy & Peoria R'y Co. been already adopted, and we see no good reason for changing it. According to that rule, no natural easement or servitude exists in favor of the owner of the higher ground for the flow of mere surface water over the lower estate, but the owner of the latter may detain or divert the same without rendering himself liable in damages therefor. But this rule does not apply to a watercourse, which implies a stream usually flowing in a definite channel, though it may at times be dry. Eulrich v. Richter, 37 Wis., 226. But a watercourse does not include mere surface water which is supplied by rains or melting snow flowing in a hollow or ravine on the land. Hoyt v. Hudson, supra. We place our decision upon the distinct ground that the complaint fails to show that any natural watercourse, properly speaking, has been obstructed or interfered with by the defendant. The company has only obstructed a ditch which drained or carried off surface water from the plaintiff's premises. We do not think the defendant was bound to keep that ditch open on its own land for the convenience of the plaintiff; in other words, the owner of land is under no legal obligation to provide a way for the escape of mere surface water coming on to his land from the land of his neighbor, but has the right to change the surface of the ground so as to interfere with or obstruct the flow of such water. "The obstruction of surface water, or an alteration in the flow of it, affords no cause of action in behalf of a person who may suffer loss or detriment therefrom against one who does no act inconsistent with the due exercise of dominion over his own soil." BIGELOW, C. J., in Gannon v. Hargadon, 10 Allen, 106-110. The learned counsel for the plaintiff argued the case upon the assumption that the complaint shows that a stream of water or natural watercourse had been obstructed to the injury of his client; but we do not understand this to be the cause of action stated. It is quite clear that the company would have O'Connor vs. The Fond du Lac, Amboy & Peoria R'y Co. no right to obstruct a watercourse or divert a stream of water so as to cause damage to another, without being responsible therefor. For an injury thus occasioned the company would surely be liable, upon general principles as well as by virtue of section 1836, R. S. That liability has often been enforced by the courts. Young v. C. & N. W. Railway Co., 28 Wis., 171; Lyon v. G. B. & Minn. Railroad Co., 42 Wis., 538; Brown v. C. & S. Railroad Co., 12 N. Y., 486; Hatch v. Vt. Cent. Railroad Co., 25 Vt., 49; Lawrence v. Railway Co., 71 Eng. Com. Law, 643; Hamden v. N. H. & N. Railroad Co., 27 Conn., 158; Johnson v. A. && St. L. Railroad Co., 35 N. II., 569, are a few of the many cases which might be cited in support of that proposition of law. In Waterman v. Conn. & Pass. Rivers Railroad Co., 30 Vt., 610, it was held "that a railroad company may, as a question of prudence and care, as well be required to have regard to the prevention of damage to a land-owner by the accumulation of surface water merely, as of a running stream, when the geographical formation and surrounding circumstances are such as to make it apparent to reasonable men that such precautions are necessary; and that ordinarily what would be a reasonable performance of that duty under a given state of circumstances, would be a question of fact, and not a question of law for the court." Page 615. But the facts stated do not bring the case within the doctrine of any of the above decisions. Here, it appears, there is low land adjacent to the plaintiff's premises, the surface water from which was accustomed to flow through a ditch which was on another's land. That ditch the defendant has filled up in constructing its road-bed, and thereby turned this surface water back upon plaintiff's premises, causing the injury complained of; that is, the surface of the land has been changed by the construction of the defendant's road-bed, which prevents the surface water from passing off to the east to the river. This Clifton vs. The State. is the cause of action stated. No stream or watercourse has been obstructed, as we construe the complaint. We, therefore, think the facts stated do not constitute a cause of action, and that the demurrer was properly sustained. By the Court.-The order of the circuit court is affirmed. CLIFTON VS. THE STATE. May 17-June 4, 1881. CRIMINAL LAW. Evidence of larceny. The evidence in this case (stated in the opinion) being conclusive that plaintiff in error was guilty of the larceny of which he was convicted, and that the goods taken by him were not taken as lost or abandoned property, it was not necessary to pass upon the instructions given to the jury. ERROR to the Municipal Court of Milwaukee County. H. W. Chynoweth, Assistant Attorney General, for the state. LYON, J. The plaintiff in error, with one Bautz, was informed against, tried, and convicted of stealing two clarionets, the property of one Faetkenhauer, of the value of $25 each. The proof shows conclusively that the owner of the instruments, who was a saloon-keeper and musician, had been playing at some place away from home during the night; and that he returned to his home between four and five o'clock in the morning, left the box containing the instruments on or near a beer keg in front of his saloon, and within three or four feet. of the entrance thereto, entered his saloon by a back door, and within a few minutes opened the front door from the inside. While he was doing this, the plaintiff in error and Bautz passed the saloon, opened the box, ascertained its contents, and |