testimony was offered concerning the cubic feet per second capacity of the city or double concrete culverts; that if the water was 9 or Io inches high in the Henderson store it would have to be one foot and a half above the cast iron culvert in order to back up to such height. Testimony was afforded from the records of the experimental station showing that on September 5, 1911, there was a rainfall of 1.65 inches; on August 9, 1909, 2.75 inches; on July 27, 1914, 3.51 inches; on June 11, 1915, 1.52 inches; on June 22, 1916, 1.44 inches. Testimony was also offered to the effect that there was an obstructing projectional wall impairing the efficiency somewhat of the double concrete culverts; that mud and silt collected therein; that the course in which such culverts ran with their right angle connections served to retard the flow of water. The jury in answer to the special questions found that the rainstorm of August 21, 1918, was an unusual and extraordinary rainstorm; that the 4-foot cast iron culvert and the double box concrete culverts maintained by the defendant. were not of sufficient size and capacity to take care of the storm waters which might reasonably be expected in this locality; that likewise the city culverts across Villard street and Second avenue were not of sufficient size and capacity. A general verdict was returned for the plaintiff for $2,355.78.
Decision.
The law of the case has been stated in the cases heretofore mentioned. The principle of law therein stated, however, must be confined strictly to the particuar facts in each case involved. Again, the principle of law applicable in this .case must be determined upon the record facts. This case involved the disposition of surface waters. The drainage of the area within the city of Dickinson, wherein plaintiff’s property is located, is through run-off channels artificially or naturally provided. The facts in this record do not warrant the conclusion that the drainway, or run-off channel involved is a water course. Froemke v. Parker, 41 N. D. 408, 171 N. W. 284. Most favorably considered. this run-off channel. in a state of nature. served simply the purpose of carrying off surface waters from the drainage area involved herein as it then existed in a state of nature. The record falls far short of demonstrating the constituent elements necessary to establish a water course. Usually in an action concerning a water course, legal rights revolve about the rights of user and enjoyment. On the contrary, concerning surface waters, legal problems are concerned, generally speak-
