McDaniel

The appellant being the owner of lands above and adjoining the lands of the respondent, the surface water from the lands flowed naturally on and across the lands of the latter. To prevent such flow the respondent constructed a dam on the line of his lands, thereby obstructing the waters and backing them onto the appellant’s lands, to his damage. This action was brought to enjoin the respondent from thus obstructing the flow of the water as stated. A temporary injunction was issued, but-was subsequently dissolved by the court below on the ground that,' by the law of this state, the respondent had the right to obstruct and prevent the flow of the waters across his lands, although, by so doing, he overflowed and injured the lands of appellant. This court has held directly to the contrary in a well-considered case: Ogburn v. Connor, 46 Cal. 347 , 13 Am. Rep. 213 .

We are informed by the opinion of the learned judge of the court below, set out in the transcript, that he proceeded on the .theory that by section 4468 of the Political Code the common law is made the rule of decision in this state, and that by the common law this action could not be maintained. But, conceding that such is…