the law applicable and adapted to the conditions existent in this agricultural state.
In several cases, this court, pursuant to the construction given the facts presented, has not applied either the so-termed enemy rule or the civil law rule. Carroll v. Rye Tp., 13 N. D. 458, 101 N. W. 894; Davenport Tp. v. Leonard Tp., 22 N. D. 152, 133 N. W. 56; Soules v. N. P., supra; Reichert v. N. P., supra; Boulger v. N. P., supra; Froemke v. Parker, supra. See McHenry County v. Brady, 37 N. D. 59, 163 N. W. 540.
Our sister state, South Dakota, has recognized the application of the civil law rule. Quinn v. Railway Co., 23 S. D. 126, 120 N. W. 884, 22 L. R. A. (N. S.) 789. Thompson v. Andrews, 39 S. D. 477, 165 N. W. g. In North Dakota, however, there is no legislative recognition, either expressly or impliedly, of the easement theory such as the statute of South Dakota quoted in the opinion of Thompson v. Andrews. Our statute simply expressly provides that one may not prevent the natural flow of the stream or of the natural spring from which it commenced its definite course, nor pursue nor pollute the same. § 5341, C. L. 1913. This refers to water courses which are specifically defined by statute. § 5341a, C. L. 1913. It might perhaps be inferred, through statements made in the cases of Soules v. N. P. and Reichert v. N. P., that this court has rather leaned towards the easement theory, although express statements are made in such opinions that neither the enemy rule nor the easement rule was applied. It must be evident that, in an action which involves the disposition or removal of surface waters, not through or by means of a water course, one theory or other of the law must be considered, unless, under either theory, the rule of law, as applied to the facts, remains the same. Much may be stated, perhaps, in favor of the justice of the easement theory and its application solely to agricultural territory in its ordinary agricultural development, but it must be recognized that this easement theory imposes a servitude upon lands which is classed and termed as a property right, and grants absolutely to the upper landowner the right to discharge waters as a property right over the servient tenement. This theory grants an absolute right; the enemy rule imposes a duty and the exercise of care. In this state, where the probelms of drainage require increased burdens upon lower lands, where the problems of reclamation and even or irrigation require increased artificial conditions for the development of our agricultural territory, and where,
