Eikland

(after stating the facts as above).

The plaintiffs were in possession of property which was protected against freshets by the natural channel of a stream sufficient to carry all flood waters. The defendants, •for their own benefit, closed the channel and made a new one, against the plaintiffs’ protest that the change would endanger their property. The plaintiffs requested an instruction to the jury that if they found that, if the artificial .channel had been built of a capacity equal to the natural channel, the plaintiffs’ property would not have been damaged by the flood, then the defendants were liable. Such an instruction would have been justified under the doctrine of the leading case of Rylands v. Fletcher, L.R. 3 H.L. 330, and other English cases cited by the plaintiffs, such as Greenock Corporation v. Caledonian R. Co., [1917] A.C. 556, in which the Lord Chancellor said: “It is the duty of any one who interferes with the course of a stream to see that the works which he substitutes for the channel provided by nature are adequate to carry off the water brought down even by an extraordinary rainfall, and if damage results from the deficiency of the substitute which he has…

(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…