¶1concurring.
¶2The opinion of the commissioner meets with my approval. I do not understand it in any way to be a departure from the common law rule that a party has no right to collect surface water in a ditch or drain, and discharge it or permit it to flow onto the land of another without the latter’s consent, as we first held in Davis v. Londgreen, 8 Neb. 43, and to which we have adhered in an unbroken line of decisions down to and including Town v. Missouri P. R. Co., 50 Neb. 768. There .can be no doubt but that we are firmly committed to this rule, and it is not our purpose to depart from it. My concurrence is based on the fact that the evidence in this case takes it out of the common law rule, and brings it clearly within the rule announced in Todd v. York County, 72 Neb. 207, and Aldritt v. Fleischauer, 74 Neb. 66. I am of opinion that the evidence in this case fairly shows that the waterway, into which the defendant proposes to drain the pond situated on his land, when it reaches the plaintiff’s premises, does not lose its distinctive character as a waterway.. It is true that it widens out somewhat, and for a short distance allows the water to spread and cover more surface than it does where it is turned into the ravine. Still the flow at the place in question is unobstructed, and is continuous until it reaches Waggoner creek.
¶3For this reason, I concur in the conclusion reached by the commissioner.
¶4I dissent. I think the facts in the case bring it within the rule of Davis v. Londgreen, and that the doctrine of Todd v. York County and Aldritt v. Fleischauer is not applicable.