Opinion of the Court.

The modified judgment will be entered in this court and remanded to the circuit court for execution.

Judgments modified.

PRICE, C. J., SHAUCK, CREW, SUMMERS, SPEAR and DAVIS, JJ., concur.

Action for damages and injunction—Public ditch obstructed—And water diverted-Action not appealable-Court procedure.

An action to recover damages for so filling up and obstructing a public ditch and making a new channel, as to cause the water falling on lands of defendant and others to be diverted from the public ditch and overflow the lands of the plaintiff, thereby annually destroying his crops and pasturage, is not appealable, although the prayer for damages is followed by a prayer for injunction to prevent repeating or continuing the cause of the injuries.

(No. 10740-Decided January 26, 1909.)

ERROR to the Circuit Court of Hardin county.

On the 15th day of August, 1902, the plaintiff in error brought suit against defendant in error, in the Court of Common Pleas of Hardin county, alleging in substance, that plaintiff and defendant are owners of farms in said county-one of said farms consisting of about three hundred acres belonging to the plaintiff, and the other consisting of about two hundred and forty acres belonging to the defendant Bower. These farms are con

* See page (iii)—Reporter.

Statement of the Case.

tiguous to the extent that the northern portion of plaintiff's lands bounds defendant's lands on the east; and the northern and eastern portion of defendant's lands bounds plaintiffs said lands on the north. The plaintiff's farm was adapted to and used for agricultural purposes such as raising grain and pasture for stock of various classes common to the business of farming in that community.

It is averred that the natural drainage of the Bower farm is through a natural watercourse and township ditch, flowing in a north-easterly direction through his lands. Upon the lands of defendant and between said township ditch and lands of the plaintiff, there is a low ridge or elevation of land, and west of said elevation the waters. falling upon the lands of Bower naturally flow into said township ditch. It is alleged that during or prior to the year 1897, the defendant Bower closed up said township ditch with logs and earth and other substances, and has thereby prevented said waters falling on defendant's lands, and the other water flowing into the ditch from above his lands, from flowing away to the northeast through said ditch; and that Bower had cut a ditch running east from said township ditch through said elevation, nearly to the eastern boundary of his land, and has given such grade to the new ditch that the waters which theretofore naturally flowed into and through said township ditch and away to the northeast, now flow east through the ditch so cut by the defendant, and pour out of said ditch and run thence upon and over the lands of plaintiff, which are not naturally tributary to said waters so thrown upon them.

Statement of the Case.

The plaintiff charges that resulting from these wrongful acts of Bower, his lands have been overflowed and damaged and that he has been in large measure unable to raise crops on his lands, and that the yield of crops has been largely diminished. It is further alleged that the acts of defendant at times caused the overflow of twenty-five acres of plaintiff's lands, making them unsuitable for agricultural purposes, and that for the six years preceding the bringing of the action plaintiff had been prevented by defendant from using said twenty-five acres for any useful purpose. The plaintiff says he has been damaged by the conduct of defendant in causing and continuing plaintiff's said lands to be overflowed in the sum of $600 for which plaintiff asked judgment. The further prayer of the petition is, "that defendant may be forever enjoined from allowing said waters to flow upon the lands of plaintiff; and that defendant be forever enjoined from gathering and diverting into said east and west ditch said waters falling upon defendant's said lands * ** and from causing the same to flow through to the eastern extremity of said ditch, and thence discharging them upon said lands of plaintiff, and for such other and further relief as is proper in equity."

The defendant answered that he admitted his ownership of the lands ascribed to him in the petition, but denied all the other allegations therein.

On the issues the case was tried to a jury at the March term for 1903, but in August of that year.

The jury found the plaintiff damaged in the sum of $180. The court overruled a motion for new trial and rendered judgment on the verdict. The

Argument for Plaintiff in Error.

record shows that after the verdict and judgment the cause came on to be further heard upon the motion of plaintiff for an injunction as prayed for in the petition, and the court found from the pleadings and the evidence that the equities of the case were with the plaintiff, and that defendant had diverted the water as plaintiff had alleged, and granted a perpetual injunction against the defendant as prayed for in the petition.

The defendant gave notice of appeal and the court fixed the amount of an appeal bond, and bond for appeal was executed and with transcript and original papers the same was filed in the circuit court.

The plaintiff moved to dismiss the appeal on the ground that the case was not appealable. This motion the circuit court overruled and exception was taken. This was done at February term, 1904. At the February term for 1907, the case was heard on the pleadings and evidence, whereupon that court held that plaintiff was not entitled to either damages or relief by injunction, it being the opinion of the court that plaintiff had an adequate remedy at law by means of proceedings before the county commissioners for the establishment of ditches, etc. Being of such opinion, the court. dismissed the plaintiff's petition without prejudice, and divided the costs.

Error is prosecuted here to reverse the judgment of the circuit court.

Mr. Artemus B. Johnson and Mr. George E. Crane, for plaintiff in error.

If a legal and an equitable cause or action be united in the same petition, the parties have an