(dissenting).

' After a very careful study of the present controversy, I am not persuaded that the rule which requires a person owning land, and having occasion to change the channel of a stream running through it for the purpose of reclamation or improvement for his benefit, under all circumstances, in order to protect his neighbor against injury, to construct a channel of equal capacity with the old or natural channel, is the better one. The rule in this country would seem to be to the contrary by an overwhelming weight of judicial utterance.

I conceive the law to be that one desiring to change the channel of a stream, which he deems necessary in order to reap the greatest benefit to himself from his own holdings, must, for the protection of his neighbor, take care that the new channel is constructed in such a-way, and of such ample capacity, that it will not impede the usual flow of the water in the stream, nor the ordinary flood waters, such as might be reasonably expected or anticipated by the exercise of common prudence and foresight, taking into consideration the known climatic conditions, the topography of the country, and the experience of persons long resident within the locality. He is not required to anticipate unusual and extraordinary or unprecedented floods, such as are produced by the overwhelming cataclysms of nature, although they may not, in a strict sense, be classified as vis major or the acts of God. The trial court’s definition of an extraordinary flood is apt, namely, that it “is one of those unexpected visitations whose comings are not foreshadowed *928 by the usual course of nature, and whose magnitude and destructiveness could not have been anticipated or provided against by the exercise of ordinary foresight.”

Generally speaking, no person is bound to foresee and provide against casualties never, before known and not reasonably to be expected, or which would not have arisen save under circumstances which are exceptional. 29 Cyc. 433. But, coming more nearly to the question in hand, and speaking under the subject “act of God,” this expression is found in the same work: “Thus it has been decided that winds of unusual and extraordinary violence, extraordinary rainstorms, floods, fires, and frosts are classed as acts of God within the rule exempting defendant from liability.”' 29 Cyc. 441.

The rule is thus epitomized as applied in L. & N. R. Co. v. Conn, 166 Ky. 327, 332 , 179 S.W. 195 , 198: “He is not liable for damages growing out of ovérflows which were caused by extraordinary rains or floods; i. e., such floods or rains as are of such unusual occurrence in the vicinity that they could not have been anticipated by persons of ordinary experience and prudence.”

So, in Lyon v. Chicago, M. & St. P. Ry. Co., 45 Mont. 33, 42 , 121 P. 886 , 888: “The rule of law in such cases is that the defendant is only required to take precautions against ordinary storms which occur in the vicinity; and if the damage would have occurred by the act of God, notwithstanding the obstruction, even if there were negligence on the part of the defendant, damages cannot be recovered. * * * In this case, unlike most cases in which the act of God is invoked as a defense, the act of negligence did not occur during the storm, or after it was over. Therefore the act is only made a negligent act by comparison with the duty which defendant owed before the storm. It was not defendant’s duty to foresee and prepare against an unprecedented storm; in other words, it was not defendant’s duty to prepare against ‘the act of God.’ Its duty was only to prepare against ordinary storms.”

See, also, Farnham on Waters and Water Rights, vol. 3, sec.’ 990, where the author says:

“But in making improvements upon his own property a landowner is under no obligation to anticipate or provide *929 against extraordinary floods. * * * But a flood is an act of God when caused, without the negligence of man, by an extraordinary rainstorm so great that it could not reasonably have been anticipated, although if it had been anticipated the effect might have been prevented. A storm is not shown to have been extraordinary, so as to constitute an act of God, by the fact that a similar one had not occurred during a period of six years. If the flood is extraordinary, one whose structures, which were carefully constructed with due regard to the rights of his neighbors, aided in the injury, is not liable for the result.”

“Floods unprecedented and so extraordinary as to have been beyond reasonable anticipation are not to be provided against.” Atchison, T. & S. F. Ry. Co. v. Herman, 74 Kan. 77, 79 , 85 P. 817, 818 .

So of a large number of cases, comprising many states in the Union, of which I cite only a few: B. & O. R. Co. v. Sulphur Spring School District, 96 Pa. 65 , 42 Am.Rep. 529 ; Karchner v. Penn. R. Co., 218 Pa. 309 , 67 A. 644 ; Goddard v. C., B. & Q. R. Co., 143 Wis. 169 , 126 N.W. 666 ; White River Log, etc., Co. v. Nelson, 45 Mich. 578 , 8 N.W. 587, 909 ; Inhabitants of Palmyra v. Waverly Woolen Co., 99 Me. 134 , 58 A. 674 ; Dahlgren v. Chicago, M. & P. S. Ry. Co., 85 Wash. 395 , 148 P. 567 ; Smith v. C., B. & Q. R. Co., 81 Neb. 186 , 115 N.W. 755 ; Crawford v. Rambo, 44 Ohio St. 279 , 7 N.E. 429 ; O. & M. Ry. Co. v. Thillman, 143 Ill. 127 , 32 N.E. 529 , 36 Am.St.Rep. 359 ; Price v. Oregon Railroad Co., 47 Or. 350 , 83 P. 843 .

The necessity of the utilization of water courses in this country is so diverse, for the promotion of so vast a number of enterprises, that I am impressed that an application of the English doctrine, virtually making the party seeking to change or utilize a public stream, for his own benefit, an insurer of his neighbor against injury, is not so well calculated to meet the ends of justice to all as the American doctrine.

As to the usual or unusual features of the flood, it must be conceded that, if the conditions pertaining to whether the flood was an ordinary one, or an extraordinary or unprecedented one, were such that reasonable minds might conscientiously differ, the question was for the jury, and *930 not for the court. Supplementing what is set forth in the prevailing opinion touching the flood waters having a tendency to show their proportions, the witness Summers, who was in charge of the local office of the Weather Bureau at Juneau, testified that the precipitation in 24 hours, on September 25-26, was 5.54 inches, and that at another period, in October, 1913, when the water was accounted high, the precipitation was 3.50 inches, and that he had no records showing that the rainfall exceeded that in the meantime. Witness further testified that the precipitation at the Perseverance mine, in the Gold creek basin above, spoken of as the Jualpa basin, for the 24 hours ending at 4 p. m. on September 26th, was 7.40 inches, practically 2 inches more precipitation than at Juneau.

Mr. Sharick, who had been a resident of Juneau since 1898, and kept a record of the rainfall from 1898 to 1912, testified that the highest precipitation was on September 7, 1902, 4.01 inches, the next highest on October 17, 1905, 3.50 inches, and the next highest to that on August 26, 1905, 2.17 inches. Mr. Gastonguay relates that the highest precipitation at Perseverance mine since October, 1916, was on September 26, 1918, 7.04 inches. The next highest, according to his record, was on May 28 preceding, 3.4 inches.

Mr. Canfield, an engineer of the United States Geological Survey, who kept a gaging station in Gold creek, near Juneau, from July 20, 1916, testified that the highest point of the water was the stage indicated by 6.81 feet, with a corresponding flow of 2,600 cubic feet per second, on September 26, 1918, and that the highest number of cubic feet prior to that date was 1,000, on August 19, 1917.

W. W. Casey testified that he had been a resident in Juneau since 1898, and that he had seen no such water as fell on September 26, 1918. He further testified that at that time a flhme in the basin was carried down, and that the bridge across Gold creek was carried away. The bridge was built in 1914, and took the place of an old one, which was there when witness came to Juneau in 1898, and remained intact from floods during the entire time. The new bridge was constructed some 4 or 5 feet higher than the old one, which was'torn down'to make place for it.

*931 . The very action of the flood in question has a tendency to show it to have been extraordinary and unprecedented. It completely washed away upland, lying 21 feet above the level of the channel of Gold creek, which was covered in part with stumps, and had never, so far as known, been so affected with floods before.

Considering all these things, I am impressed that the question whether the flood was an ordinary one, or was unusual and extraordinary or unprecedented, was one for the jury, and was properly submitted to them for their judgment.

Further than this, a careful examination of the record does not, to my mind, disclose any reversible error of the court.

These considerations would lead to an affirmance of the judgment.