Md. 348; Cartmell v. McClaren, 12 Heisk. 41; Loeb v. Willis, 100 N. Y. 235, 3 N. E. 177; Tootle v. Cahn, 52 Kan. 73, 34 Pac. 401; Heegaard v. Dakota Loan & T. Co. 3 S. D. 569, 54 N. W. 656; Koons v. Williamson, 90 Ind. 599; Wilde v. Hart, 24 Ark. 599; Kain v. Byrd, 1 Stew. (Ala.) 189; Dunkle v. Rotholz - N. J. L. —, 19 Atl. 260; besides numerous other cases cited from Colorado, Georgia, Illinois, Indiana, Kentucky, Louisiana, Mississippi, Missouri, New York, Ohio, Tennessee and Texas; Evans v. Phillips, 4 Wheat. 73, 4 L. ed. 516; Corsor v. Reed, 21 L. J. Q. B. N. S. 18.

"A complaint once dismissed so far terminates the action that no motion or proceeding can be had in the case, except for the purpose of carrying into effect the order of dismissal." 9 Am. & Eng. Enc. Law, 2d ed. p. 505; Tillspaugh v. Dick, 8 How. Pr. 33; 2 Wait, Pr. p. 517; Greeley v. Winsor, 3 S. D. 138, 52 N. W. 674.

A. V. A. Peterson (Frich & Kelly and S. G. Skulason of counsel) for respondent.

"A motion to set aside a nonsuit or judgment for dismissal, and to reinstate the case, being in the nature of a motion for reconsideration, is addressed to and rests in the discretion of the court before whom the case was heard and by whom the action was dismissed, and such discretion will not be disturbed or controlled unless there is manifest abuse." 14 Cyc. 460.

"A dismissal or nonsuit will often be set aside where a suit is meritorious and it appears that plaintiff was not culpably negligent and no injury results to the defendant." 14 Cyc. 461; Bradley v. Slater, 55 Neb. 334, 75 N. W. 826.

After reinstatement of case for trial, and after defendant's special appearance and objections, which were overruled by the court, the defendant waived its special appearance and same was converted into a general appearance, by its appeal to this court, where it seeks affirmative relief. Miner v. Francis, 3 N. D. 549, 58 N. W. 343; Lyons v. Miller, 2 N. D. 1, 48 N. W. 514; Benoit v. Revoir, 8 N. D. 226, 77 N. W. 605.

And the verdict here is amply sustained by the evidence, and the jury having passed upon same, its verdict is final. Nilson v. Horton, 19 N. D. 187, 123 N. W. 397, and citations.

BURKE, J. The facts leading up to this appeal are as follows: Plaintiff had brought suit against the elevator company to recover for the conversion of some grain hauled to the defendant's elevator by a tenant. This action and one against the St. Anthony & Dakota Elevator Company were set for trial in the district court at Lakota upon a date certain. Plaintiff was a resident of Glendive, Montana, but happened to be away from home when his attorney wired him this information. Plaintiff's wife, receiving the telegram, called plaintiff on the phone and notified him of its contents. He thereupon wired his attorney in care of the clerk of the district court of Lakota, and took a train for that place. The train upon which he was traveling was due to reach Lakota upon the morning of said day. The telegram, however, through the carelessness of the operator at Lakota, was not delivered for several days after it was received, and not until plaintiff had personally arrived. When the case was called for trial, therefore, neither the judge nor the attorneys had any knowledge of the whereabouts of plaintiff. Defendant was there ready with his witnesses for trial. The trial judge called plaintiff's attorney upon the telephone and asked him what he was going to do. The attorney replied that he had not yet received an answer to his telegram, and did not know the location of his client; that he did not know what he could do with the case, and that the only thing that could be done under the circumstances would be to dismiss both cases. That thereupon the judge made an oral order that the cases be dismissed without prejudice. That at 11:05 A. M. of that day the plaintiff arrived upon the train and advised the court of all the circumstances, including the nondelivery of the telegram, and thereupon the court reinstated the cases for trial, ordering the plaintiff to pay $25 in each case to reimburse the defendant for the delay. The cases then proceeded to trial and resulted in judgment in favor of the plaintiff. Defendant appeals, claiming that the court upon the oral order of dismissal had lost jurisdiction of the cases.

(1) We think it clear that the court had jurisdiction to change his rule and reinstate the cases under the circumstances outlined above. Plaintiff himself had done nothing to secure the dismissal, neither had his attorney, excepting to state that he did not believe he was in a position to go to trial and could do nothing else than to submit to the nonsuit. Neither plaintiff nor his attorney were in the least to blame, and

the application was made within an hour from the time when the court had ordered the cases dismissed. The rule is correctly stated at 14 Cyc. at page 460: "Discretion of court.-A motion to set aside a nonsuit or judgment of dismissal, and reinstate the case, being usually considered as in the nature of a motion for reconsideration, is addressed to, and rests in, the discretion of the court before whom the case was heard and by whom it was dismissed or the nonsuit granted, and such discretion will not be controlled unless manifestly abused. Time for setting aside and reinstatement.-It is competent for a court to reinstate a case during the same term at which it was dismissed." At page 461 it is said: "A dismissal or nonsuit will often be set aside where a suit is meritorious and it appears that plaintiff was not culpably negligent, and no injury results to defendant, and it will not require so strong a ground to set aside a nonsuit as to grant a new trial. Thus, a case may be reinstated where there has been surprise, improvident consent to dismissal by attorney, or failure to give bond for costs through ignorance that it would be required." The cases cited fully bear out the text. Our own court in Colean Mfg. Co. v. Feckler, 16 N. D. 227, 112 N. W. 993, while not directly passing upon this point, strongly intimated that the trial court is vested with broad jurisdiction in relieving parties from defaults taken against them through inadvertence. They say, after setting out the facts upon which they acted: "In the light of the verdict it is too clear for discussion that the trial judge properly granted plaintiff's motion to vacate said default judgment." It is clear to us that the trial court in the case at bar acted within its jurisdiction.

On Petition for Rehearing, filed April 26, 1916.

PER CURIAM. Counsel for appellant has filed a petition for rehearing, which is entitled to brief notice. His major premise to the effect that plaintiff's attorney voluntarily dismissed the actions is, as we view it, unsound. It is in effect so stated in our opinion. Our reason for deeming it unsound is briefly that appellant's construction of what took place is unwarranted. A fair construction of the record discloses that plaintiff's attorney in effect merely informed Judge Cooley in their long distance 'phone conversation that under the circumstances there was nothing for him or his client to do but to submit to a dismissal. Why

should he be held under the facts to have voluntarily moved for a dismissal rather than merely submitting to what he deemed the inevitable, to wit, a dismissal by the court on its own motion for failure of plaintiff to appear and prosecute his case? Plaintiff's counsel had absolutely nothing to gain, and possibly something to lose, by putting his client in the situation of voluntarily dismissing the actions, rather than submitting to a dismissal by the court for nonappearance. But, even if counsel for plaintiff had been personally present in court and had formally moved to dismiss the actions, the result would be the same; for concededly no order or judgment had been entered on such motion, and no record made other than in the minutes of the court, and manifestly, therefore, the court still retained jurisdiction to deal with the situation as it did. It would be nothing less than a travesty on justice to hold that under the conceded facts in this record, the trial court was shorn of all power and jurisdiction to do justice between these parties by reinstating the actions for trial upon terms. The petition is denied.

JAMES SOULES and Roy Butler, Copartners, Doing Business under the Firm Name and Style of Soules & Butler, v. NORTHERN PACIFIC RAILWAY COMPANY, a Foreign Corporation.

1. Both under the civil-law rule as to surface waters and under the so-called common-law or common-enemy rule, a natural drain way must be kept open to carry the water into the streams, and the lower estate is subject to a natural servitude for that purpose.

Note. In addition to the note referred to in the opinion, 22 L.R.A. (N.S.) 789, which discusses the right of the owner of the lower tenement as against the right of the upper landowner to obstruct surface water in a natural drainage channel, sec note in 21 L.R.A. 598, on the correlative rights as to obstruction of surface water. On the right of lower proprietors to obstruct the flow of surface water, see note in 16 Am. St. Rep. 710.

2. Proof that a drain or ditch receives the surface water of a drainage area of some 168 acres, is several feet in depth, has a well defined channel, and, though it has grass growing at its sides, has a space at the bottom which is worn away by the water to a breadth of 3 or 4 feet, and that such drain or ditch serves to convey the waters of the area into a river or stream, will justify the jury in holding that such drain or ditch is a natural drain way or drainage channel, and this though there is no evidence that the water ran in the same at all times, but merely that the drain or ditch served to convey the melting snows and surface waters.

3. It is the duty of a lower landowner who builds a structure across a natural drain way to provide for the natural passage, through such obstruction, of all of the water which may be reasonably anticipated to drain therein, and this is a continuing duty.

4. Where there is evidence which tends to show that a drain way is a natural drain way, and that it has been obstructed by a lower landowner, and that such obstruction occasioned the flooding of and injuries to the property of an upper landowner, the burden of proof is upon the defendant or lower landowner, when sued for such damages, to prove that the storm which occasioned the flood was unprecedented; that it could not have been reasonably anticipated, and need not have been provided against.

5. Evidence examined, and held not to be such as to justify a holding, as a matter of law, that the storm in question was so unprecedented that it should not have been anticipated, but rather that the fact was one for the jury to pass upon.

Floods

unprecedented - unusual occurrence - anticipated nity people — experience of.

- commu

6. Extraordinary or unprecedented floods are floods which are of such unusual occurrence that they could not have been foreseen by men of ordinary experience and prudence. Ordinary floods are those, the occurrence of which may be reasonably anticipated from the general experience of men residing in the region where such floods happen.

7. In passing upon what is or what is not an extraordinary flood, or