The opinion of the court was delivered by

The action was for damages to the plaintiff’s land by water flowing in a natural water-course, but in unusual quantities, due, as alleged, to the following facts: The water-course in question had become choked up at a point above the plaintiff’s land, where it passes the embankment for the defendant’s railroad, by a culvert, and an extraordinary accumulation of water had been occasioned. The defendant’s servants made an opening by which the water thus accumulated should flow into the water-course below the obstruction, and thus flow along its natural channel. The flow of water thus caused was alleged to have occasioned the damage complained of.

The charge of the Circuit judge dispensed with the necessity •of a finding of negligence on the part of the defendants and placed the plaintiff’s right of recovery on two facts, namely, that it should appear that the defendant’s servants discharged the accumulated water into the water-course, and that such water •caused the damage in question.

The cause of the damage was water in a natural water-course moving in obedience to its own laws; it was not, therefore, a case-of actual trespass. The question, then, was whether the damage was consequential to an unlawful act of the defendants or their servants acting under their authority. It is the concurrence of damage and injury that constitutes the only ground of defendant’s liability. The plaintiff could not sustain injury unless the act of the defendants, either in its nature or the mode of its performance, was unlawful. Removing an' obstruction to the flow of water in a natural water-course, on the defendant’s land, is in itself a lawful act, and as such no ground for alleging injury. When a lawful act is performed, which, in its nature, is liable to occasion injury to the person or property of another, the law charges the party performing such act with the duty of exercising care and skill in its performance. The neglect of this duty is legal negligence, and it is in a legal sense the proximate cause of any damage directly resulting from it, although such *100damage is immediately occasioned by the operation of natural laws.

The question for the jury was, then, whether the defendants, were guilty of negligence in the mode in which the accumulated water was set free in the water-course. It was error to place the liability of the defendants on grounds that rendered it unnecessary for the jury to inquire as to the existence of such negligence.

There must be a new trial.