tomed flow in a drainage channel or waterway having well-defined banks, may not be stopped by an embankment across the channel so as to divert the waters to the injury of adjoining proprietors. See 40 Cyc. 648; Aldritt v. Fleischauer, 74 Neb. 66, 103 N. W. 1084, 70 L. R. A. 301. It seems to be well established also—and this even where the common-law rule applies—that where a_ railroad crosses a ravine, gully, or natural depression in the earth, which forms the natural and accustomed channel tor the escape of surface waters, it is incumbent upon the company to make provision for the. flowage of the same. See Jungblum v. Minn., etc., Railroad Co., 70 Minn. 153, 72 N. W. 971; Smith v. Chicago Railroad Co., 83 Neb. 387, 119 N. W. 669; Quinn v. Chicago, etc., Railroad Co., 23 S. D. 126, 120 N. W. 884, 22 L. R. A. (N. S.) 789; 40 Cyc. 644. The controversy in the case at bar has been mainly over the question of the size of the culvert,” etc.
The language of the above quotation is applicable to this case, and here, as there, one of the principal elements of contention is the sufficient size and capacity of the same culvert, as will be seen by an examination of question 2, supra, to which the jury answered in the negative, thus determining that the culvert was of insufficient size and capacity to take care of the storm waters which might reasonably be expected in the vicinity of Dickinson.
From the evidence in this case, and from taking judicial notice of our former decisions in Reichert v. Northern Pacific Ry. Co., supra, Soules v. Northern Pacific Ry. Co., 34 N. D. 7, 157 N. W. 823, L. R. A. 1917A, 301, and Boulger v. Northern Pacific Ry. Co., 41 N. D. 316, 171 N. W.. 632, it is clear there is a natural drainway or channel near Villard street and Second Avenue East, and extending thence south and east to the Heart river, a distance of about 700 feet; and that in that distance there is a fall in the channel toward the Heart river of between 30 and 4o feet.
It would seem clear, from the size and nature of this channel, and the amount of lowland lying south and east from the intersection of Villard street and Second Avenue East, that the channel, if unobstructed by the railway embankment and the Dickinson Grocery building, etc., would be of sufficient capacity to carry to the Heart river all surface drainage waters within the drainage district of 168 acres here under consideration, and which would naturally empty, if unobstructed, into it, and in such manner and with such rapidity that the water would not back up and cause damage to property of the character alleged and proven in this action;
