Eikland

(after stating the facts as above).

There was more testimony at the second trial than there was at the first upon the extent of the rainfall which caused the rise of the creek. Nevertheless, considering all of the testimony, we are of the opinion that it fell far short of proving that the flooding was so far due to natural causes, directly and exclusively without human intervention, that it could not have been prevented by any amount of foresight and care reasonably to have been expected of the defendants. Eikland v. Casey (C.C.A.) 266 F. 821 , 12 A.L.R. 179 . The court, therefore, should have decided as a matter of law that the flooding was not due to an act of God, and the case should not have been complicated by that issue.

But the elimination of that question does not compel the conclusion, contended for by plaintiffs, that defendants were liable for the damages caused by the flooding, for there remained the question whether the flooding which caused the damage was attributable to the negligence of the defendants. Nelson v. Casey (C.C.A.) 279 F. 100 . Determination of the negligence issue necessarily involved consideration of the evidence bearing upon the construction of the…