Sec. 890. Fighting surface water-Erecting barriers. In Nebraska the common law rule prevails that a proprietor may by barriers or otherwise protect his land from surface water coming from across adjacent lands, unless in the execution of such he be guilty of negligence. One has no right to accumulate surface waters upon his own land and by means of a ditch discharge them in a volume upon the land of another. Churchill v. Beethe, 48 Neb. 87 (66 N. W. Rep. 992; 35 L. R. A. 442); City of Kearney v. Themanson, 48 Neb. 74 (66 N. W. Rep. 996). Where owners of land adjacent to a highway construct a system of artificial ditches, converging at a culvert crossing such highway, so as to discharge an unnatural quantity of water on the lower lands on the opposite side of such highway, the owner of such lower lands cannot dam the culvert on the highway for the purpose of protecting her lands from such overflow. Myersv. Nelson, Cal.

(44 Pac. Rep. 801). In the state of Washington it is held that the owner of land may erect barriers upon it to prevent the influx of surface water, whether collected in artificial channels or not, and if such water is set back or turned aside upon the land of another, to his injury, it affords no cause of action. Quoting Gould on Waters, § 275, Cass et ux v. Dicks et al, 14 Wash. St. 75; (44 Pac. Rep. 113; 53 Am. St. Rep. 859). Citing, Railway Co. v. Keys, 55 Kas. 205 (40 Pac. Rep. 275); Hoard v. City of DesMoines, 62 Ia. 326 (17 N. W. Rep. 527); Turnpike Co. v. Green, 99 Ind. 205; Bates v. Smith, 100 Mass. 181; Goodall v. Tuttle, 29 N. Y. 459; Hoyt v. City of Hudson, 27 Wis. 656; Abbott v. Railroad Co., 83 Mo. 271; Bowlsly v. Speer, 31 N. J. Law, 351.

Sec. 891. Construction of drains - Estoppel of land owners. In an action for damages alleged to have been caused by the drainage of surface water from a pond on defendant's land into a draw, by which said water was conducted to and across the land of plaintiff, an admission by the plaintiff that the draw was a natural water way, and had, since the ownership of the land claimed to have been damaged, been such a water way, and that the water generally from that portion of the country had flowed through this ravine, precluded the possibility of a recovery of damages for

the destruction of the grass in the bed of such draw on his premises, caused by the additional flowage resulting from the aforesaid drainage. Rath v. Zimbleman, 49 Neb. 351 (68 N. W. Rep. 488). Where the owner of the upper or dominant estate, for the benefit of his own land diverts into an artificial ditch surface waters which previously and naturally flowed in a ravine from his land upon and through a lower or servient estate, the effect of the diversion being to relieve the latter of the burden of the water, the owner of the servient estate does not acquire any right to the continuance of this immunity, or to prevent the owner of the dominant estate from restoring the waters to their original and natural channel, unless the facts are such as create an equitable estoppel, as where, for example, the owner of the dominant estate has, by words or acts, represented that the diversion was to be permanent, and the owner of the servient estate, in reliance upon these representations, has so improved or otherwise changed the condition of his premises that it would be inequitable to him to permit the owner of the dominant estate to restore the waters to their original channel, and again subject the lower estate to its former servitude. Canton Iron Co. v. Biwabik-Bessemer Co., 63 Minn. 367 (65 N. W. Rep.

643).

Sec. 892.

Diversion of surface water by a railroad. Where a railroad company by the improper construction of its roadbed diverts the natural flow of surface water to the injury of adjacent lands it is liable for such injury, and the measure of damages is the difference in the value of the land in its damaged condition and what would have been its value had the roadbed been skillfully constructed. Parker v. Norfolk & C. R. Co., 119 N. C. 677 (25 S. E. Rep. 722). To the same effect, see, Canton A. & N. R. Co. v. Paine, Miss. (19 So. Rep. 199). Where a railroad company has condemned a bed for a right of way across lands subject to overflow from streams and surface water it cannot be held liable for damages on account of its embankments increasing the overflow of such lands, it appearing that numerous tressels were provided for the discharge of the water and it not being shown that the right of way could have been constructed as

Yazoo &

economically and safely without the embankments. M.V. R. Co. v. Davis, 73 Miss. 678 (19 So. Rep. 487; 55 Am. St. Rep. 562).

Sec. 893. Liability of municipalities. In order to render a city liable for damages resulting from its drainage, it must be shown that the injuries complained of were the direct result of a corporate act which is in the nature of a trespass upon the property injured. Knostman & Petersen Fur. Co. v. City of Davenport, 99 Ia. 589 (68 N. W. Rep. 887). A city is liable for damages to property caused by its changing the course of a natural stream flowing within its limits so as to make it flow along a public street on which the property abuts, in such a manner as to prevent free access to it. Geurkink v. City of Petaluma, 112 Cal. 306 (44,Pac. Rep. 570). It is held that a city may lawfully and without being liable to the owners of private property, construct sewers and drains for the purpose of ridding its streets of surface water, strictly so called, though the result be to divert and cause the same to flow upon the adjoining private grounds or increase such flow. Schrader v. City of Baraboo, 93 Wis. 95 (67 N. W. Rep. 27). The doctrine of non-liability of municipal corporations for failure to exercise the legislative powers they may possess to improve streets, construct gutters and provide other means of drainage for surface waters, so as to prevent them from flowing upon adjoining lots does not apply, if the necessity for the drainage is caused by the city. Stanford v. City and County of San Francisco, 111 Cal. 198 (43 Pac. Rep. 605). Under the common law rule which prevails in Nebraska, the proprietor of lands may, by a proper use and improvement upon them, deflect surface water; and for consequent damage to his neighbor he is not liable, in the absence of negligence. This rule applies to counties and municipalities exercising the right of eminent domain. For an unlawful diversion of surface water there is a remedy by an action for damages, or by injunction, against a private individual. But a county or municipality, in the exercise of a right of eminent domain, may divert water in a manner which would be unlawful if done by an individual. In such case just compensation must be made for all damages inflicted. All damages,

immediate or prospective, which may flow from the proper construction and maintenance of an improvement carried on under the power of eminent domain, must be compensated in the original condemnation proceedings. Churchill v. Beethe, 48 Neb. 87 (66 N. W. Rep. 992; 35 L. R. A. 442).

TAXES AND TAX TITLES.

EPITOME OF CASES.

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Sec. 894. Exemption from taxes. Statutes exempt. ing property from taxation are to be strictly construed. ple ex rel. Breymeyer v. Watseka Camp Meeting Ass'n., 160 Ill. 576 (43 N. E. Rep. 716); City of Hartford v. Hartford Theological Sem., 66 Conn. 475 (34 Atl. Rep. 483); Farweli v. Des Moines Brick Mfg. Co., 97 Ia. 286 (66 N. W. Rep. 176; 35 L. R. A. 63); Yates v. Milwaukce, 92 Wis. 352 (66 N. W. Rep. 248); Thurston Co. v. Sisters of Charity, 14 Wash. 264 (44 Pac. Rep. 252); Edmons v. San Antonio, 14 Tex. Civ. App. 155 (36 S. W. Rep. 495). A general exemption from taxation does not include special assessments for municipal improvements. Farwell v. Des Moines Brick Mf'g Co., 97 Ia. 286(66 N. W. Rep. 176; 35 L. R. A. 63), collating and citing numerous authorities; Fayssoux v. Denis, 48 La. 850 (19 So. Rep. 760); Borough of Beltzhoover v. Heirs of Beltzhoover, 173 Pa. 213 (33 Atl. Rep. 1047); Smith v. Abington Sav. Bank, 165 Mass. 285 (42 N. E. Rep. 1133); Yates v. Milwaukee, 92 Wis. 352 (66 N. W. Rep. 248), construing and applying Wis. Laws 1889, ch. 450; 1891, ch. 82, and collating numerous authorities. A statute exempting from taxation the capital of a bank does not extend to real estate which it has subjected to its ownership through a mortgage given upon it to secure a stock subscription in such bank. State ex rel. Citizens' Bank v. Board of Assessors, 48 La. 35 (18 So. Rep. 753). Where the business manager of a religious order owning real estate within the corporate limits of a town was instrumental in procuring the incorporation of such town and taxes assessed by it had been paid on such

lands by the owner thereof for several years it is estopped to claim their exemption for reason that the lands are agricultural. Benedictine Order of Covington v. Central Covington, 99 Ky. 7 (34 S. W. Rep. 896).

Sec. 895. Exemption from taxes-Statutes construed. Ohio Rev. Stat., § 2732, subd. 8, which exempts from taxation "all market houses, public squares, or other public grounds, town or township houses or halls used exclusively for public purposes and all works, machinery, pipe lines and fixtures belonging to any town and used exclusively for conveying water to said town, or for heating or lighting the same," is held to exempt gas wells, pipe lines, pumping stations, and machinery owned by a municipal corporation, and used by it for the conveyance of gas to be consumed by its citizens generally. City of Toledo v. Hosler, 54 O. St. 418 (43 N. E. Rep. 583). Where a statute (Wash. Gen. Stat., § 1022) makes general provisions concerning the exemption of property of various institutions from taxes, and extends the exemption in some cases to "grounds attached" to or upon which buildings of such institutions "are erected," a genera! clause exempting "hospitals" does not include lands occupied or used in connection therewith. Thurston Co. v. Sisters of Charity, 14 Wash. 264 (44 Pac. Rep. 252). N. J. Laws, 1894, p. 354, construed and applied-exemption of lands for home of feeble minded. State v. Collector of Tp., N. J. L. (35 Atl. Rep. 906). N. J. Revision, p. 1151, § 61, applied-exemption of public property-lands held for the purposes of the Newark City Home. Verona Tp., 59 N. T. L. 94 (34 Atl. Rep. 1060).

State v.

Sec. 896. Exemption from taxes-School property -Property of churches and charitable institutions. A statute (Ark. Const. Art. 16, § 5) exempting from taxation "school buildings and apparatus, libraries and grounds used exclusive for school purposes," does not exempt lands held by a school district solely for sale or rent for the sake of profit. School Dist. v. Howe, 62 Ark. 481 (37 S. W. Rep. 717). A charter of a corporation which exempts its property from taxso long as the same shall be used and the avails thereof

ation "