Kelliher

The court granted a rehearing of this case mainly for the purpose of further considering the claim of the appellants that the findings are hopelessly conflicting. It is earnestly insisted that finding V conflicts with finding VI and other findings. We have given the matter mature consideration and we are satisfied as the result of such examination that there is no conflict whatever between them. It is clear to us that finding V relates to one matter and finding VI to another.

To understand this point fully it must be recalled that the respondent urges two causes of action in his complaint. They are not stated in separate counts, but they are quite distinct. They are:

First: That the flood waters are so diverted by the embankments of which he complains that they are thrown in volume into a drainway upon and across the premises of the respondent, and that they have washed and deepened this drainway to such an extent that he cannot plow and harrow across it as he was accustomed to do. The following quotation from paragraph 25 of the respondent’s complaint will make this plain:

“That upon plaintiff’s said lands adjoining said Fitzgeralds there is no marked depression or swale and,…