after stating the case: The exceptions are to the charge only. His Honor erred in instructing the jury that “the defendant owed to the plaintiff the duty to provide side ditches sufficient to collect and carry off all surface water that came down from the land above in its natural flow,” and was responsible for any damages the plaintiff sustained by reason of the defendant’s ditches being insufficient to carry off the water coming down from above in its natural flow, and refused to charge, as requested, that it did not owe such duty to the plaintiff.

It is settled that the lower proprietor must receive the surface water which falls on adjoining higher lands and naturally flows therefrom. The owner of the upper land may accelerate the flow of the water but cannot divert it. Porter v. Durham, 74 N. C., 767. This is true as between the defendant and the plaintiff as owner of the land above the railroad track, and it is equally true as between the defendant and' the plaintiff as the owner of the land below the railroad.

The defendant, had it so chosen, might by its side ditches have caught the water coming down from the plaintiff’s *449 laud above its track and led it to be discharged at another point — if the owner of the land at such point did not object. But there is no allegation or proof that the defendant has obstructed or diverted the natural flow of the water coming from above and poured it upon the plaintiff’s land. The plaintiff has no legal ground for his complaint, which is that the defendant has not kept open side ditches to divert and carry off the water coming down from above, but, permitting the ditches to fill up, has let the water from the plaintiff’s land above sweep across its track, unimpeded, and flow in its natural course upon the plaintiff’s land below.

Error.