Dorlan

We cannot disturb the decision and judgment of the district court, on the ground that there was no *458 proof of damage to the plaintiff, or that the damages were excessive. In the most favorable view for the defendant of the proofs in the cause, the evidence as to damages was conflicting, and in such cases we do not interfere with the action of the court below.

The only remaining point made by the appellañt is, that the injury which the plaintiff suffered, if any, was damnum absque injuria. The argument of counsel is, that the defendant, in constructing its railroad, found it to be necessary to throw up an embankment in front of the plaintiff’s property, and if the work was skillfully and carefully done, the defendant is not liable for the damage to the plaintiff in flooding his land, even though the injury was the natural or necessary result of the embankment. In other words, the proposition is, that the defendant had the lawful right to construct its railroad where it did; and that if it performed' the work in a skillful and proper manner it is not liable for any damage caused to the plaintiff by the flooding of his land, in consequence of a necessary embankment. Without…