Casey

(concurring).

While there is authority to sustain the ruling of the court below, that if at the time when the plaintiffs purchased their lots the defendants had accomplished the purpose for which they changed the course of the creek, and had lost all interest in the creek and in any property adjacent thereto, and were no longer maintaining the obstructions complained of, they would not be liable for damages to the plaintiffs (Blunt v. Aikin, 15 Wend.[N.Y.] 522, 30 Am.Dec. 72; Curtin v. Somerset, 140 Pa. 70 , 21 A. 244 , 12 *79 L.R.A. 322 , 23 Am.St.Rep. 220 ; Daugherty v. Herzog, 145 Ind. 255 , 44 N.E. 457 , 32 L.R.A. 837 , 57 Am.St.Rep. 204 ), we think that the court took an erroneous.view of the allegations of the complaint, and that the complaint does distinctly show that the defendants were maintaining the obstructions complained of at the time when the plaintiffs sustained their injuries. It alleges that at the time of turning the channel of the stream and the erection of embankments and bulkheads thereon, the defendants surveyed and platted lands on both sides of the new channel, laid them out into building lots and streets, and were still selling the lots and offering them…

(after stating the facts as above).

The gravamen of the present action is not founded in contract at all, but in negligence on the part of the defendants in respect to the dam and bulkheads and maintenance thereof. City Water Co. v. Fergus Falls, 113 Minn. 33 , 128 N.W. 817 , 32 L.R.A.(N.S.) 59, Ann.Cas.1912A, 108. In Free v. Parr Shoals Pwr. Co., 111 S.C. 192 , 97 S.E. 243 , in an action for damages to land through the negligence of the defendant in the construction of a dam, one of the defenses interposed was that the defendant had been given a right to construct a dam across a certain river, and that plaintiff had purchased his lands subject to such right, but the court held that, while plaintiff could not recover for damages resulting from, the erection of the dam, provided due care was exercised in its construction, yet defendant had no right to construct the dam in a negligent manner. In the *77 Salton Sea Cases, 172 F. 792 , 97 C.C.A. 214 , where a diversion of a river was made by the defendant and made in such a negligent manner that it resulted in the injury complained of, it was held that it was the duty of the defendant to maintain proper control of the water at its…