closure had a meritorious defense, or that the proceedings were not proper and regular upon their face.

The appellees answered this complaint by a general denial. The cause was tried by the court, and, upon request, a special finding of the facts and conclusions of law were returned. The conclusion at which we have arrived, upon the effect to be given to the return of the sheriff, in this class of actions, renders it unnecessary to set out at length the finding of facts and conclusions of law.

The court found that the summons issued in the foreclosure suit was returned by the sheriff with this indorsement:

"Came to hand this seventh day of April, 1888. Served as commanded by leaving a true copy of this writ at the last and usual place of residence of Elizabeth Cully, this eleventh day of April, 1888. PERRY H. LAWTON. "By J. S. MCLEOD, Deputy."

This return was regular upon its face, and was such as to fully authorize the court to assume jurisdiction of the person of the defendant. The proceedings of the court, subsequent to that time, appear to be regular. There is no pretense that there was any fraudulent conduct on the part of either the plaintiff or the officer in the service or return of the summons, or that the defendant was not a resident of the county.

Such being the case, we are of the opinion that the return by the sheriff of the service of the process was binding and conclusive upon the parties to the suit, and that neither of them can, as against the other, be permitted to dispute its verity.

In Nietert v. Trentman, 104 Ind. 390, it was held, by a divided court, that in a proceeding under section 396 of the Revised Statutes of 1881, to set aside a default and be relieved from a judgment taken against a defendant who had a meritorious defense, but was prevented from appearing in time to make his defense by "his mistake, inadvertence, surprise, or excusable neglect," the defendant might, for the sole purpose of showing a sufficient reason for not appearing and making defense, show that the summons was not, in fact, served upon him.

In the opinion overruling the petition for a rehearing, Zollars, J., said: "He cannot dispute the service for the purpose of assailing the judgment as void, nor of disputing the jurisdiction of the court over him; he cannot do this by reason of

the rule invoked by appellees. That rule says that for the purpose of jurisdiction the return of service by the officer is conclusive, although, in fact, there may have been no ser vice."

This case is not within the exceptions to the general rule, that the return of a sheriff is conclusive between the parties, as declared in that case, and we certainly do not desire to go any farther in that direction.

The appellant cites and relies upon the case of Dobbins v. McNamara, 113 Ind. 54; 3 Am. St. Rep. 626. In that case the complaint alleged that the defendant was not a resident of the county where he was returned as served by copy left at his last and usual place of residence; that he never made his home, or even staid over-night, at the house where the copy was left, and it also alleged that he was not at that time within the jurisdiction of the court in which the action was pending. In connection with these allegations, it was averred that the pretended service and return to the summons was procured by the fraud of the attorney of the plaintiff.

The distinction between the cases is marked and important. The elements of fraud and the non-residence of the defendant, lacking in this case, were in that case controlling. A similar case is that of Cavanaugh v. Smith, 84 Ind. 380.

We have considered this case upon the ground assumed by the parties, that the attack upon the judgment was direct, and not collateral. The converse of this rule seems to be established by the later cases, and the general rule is laid down that any attack upon a judgment for want of jurisdiction in the court to render it, predicated upon a matter dehors the record, is collateral: Harman v. Moore, 112 Ind. 221; Cain v. Goda, 84 Ind. 209; Lantz v. Maffett, 102 Ind. 23; Earle v. Earle, 91 Ind. 27; Indianapolis etc. R'y v. Harmless, 124 Ind. 25.

Judgment affirmed.

JUDGMENT.-IMPEACHMENT OF SHERIFF'S RETURN, in what cases allowed: See note to Morrill v. Morrill, 23 Am. St. Rep. 117. The authorities are con⚫ flicting as to the conclusiveness of a sheriff's return. As to what is a collateral attack, see note to case just cited, p. 104; and People v. Greene, 74 Cal. 400; 5 Am. St. Rep. 448, and note.

PATOKA TOWNSHIP V. HOPKINS.

SURFACE WATERS.

[131 INDIANA, 142.]

IT IS NOT TRUE THAT A LAND-OWNER OR A MUNICI. PAL CORPORATION may lawfully collect surface water into an artificial channel and pour it on another's land.

SURFACE WAters. IF A PUBLIC CORPORATION by its acts makes necessary an outlet for the escape of water collected by it into artificial water-ways, it must provide that outlet. Otherwise it is guilty of an actionable wrong. HIGHWAYS-SURFACE WATERS FROM. — If surface waters are collected in ditches at the sides of a public highway, and those ditches are then united and their waters thrown on the land of a private proprietor, ren. dering it wet and untillable, he is entitled to maintain an action against the township under whose authority the injury was inflicted, to enjoin its continuance.

PLEADING.

- COMPLAINT WILL NOT BE HELD BAD because the facts stated do not entitle the plaintiff to all the relief prayed for.

APPELLATE PROCEDURE.

AN APPELLER MAY, IN INDIANA, properly save a question and duly present it by the assignment of cross-errors, and when he does so, he may, in many instances, accomplish as much as if he had himself prosecuted the appeal.

HIGHWAYS. A COURT CANNOT DIRECT HOW AND WHEN DRAINS shall be constructed by highway officers.

M. W. Fields and J. W. Ewing, for the appellants.

L. C. Embree and W. P. Howe, for appellee.

ELLIOTT, C. J. The complaint of the appellee is for an injunction and the abatement of a nuisance. The complaint alleges that the appellee owns eighty acres of land, lying along a public road, under the control of Patoka township; that the natural surface of the land is such that the surface water which collects south of the road flows south over the appellee's land, and the water which collects on the north side of the road flows north and away from his land; that prior to the first day of May, 1889, the township had cut two artificial ditches, one on each side of the road; that on the day named the township constructed a culvert across the road, so that the water in the north ditch poured into the south ditch; that neither of the ditches constructed by the township is a natural watercourse; that along the north line of the road the property owners had constructed high embankments, and thus prevented the water from flowing upon their land, and caused it to be confined in the north ditch; and that a great quantity of water collects in the ditch north of the road; that by uniting the two ditches the water was thrown upon the appellee's land, rendering it wet and untillable.

AM. ST. REP., VOL. XXXI. — 27

The case has been ably argued, and the questions well presented. The questions are important, and not free from difficulty.

Surface water, it has been said, is a common enemy, which the land owner may fight off his land, as best he may. But while there is something of truth in the statement, there is, nevertheless, much of error. It is not true, in law, that a landowner or a municipal corporation may collect surface water in an artificial channel and pour it upon another's land. Whatever doubt may have once existed upon this subject, none longer exists. It is now well settled that the right to fight off surface water does not authorize it to be collected in a volume and cast upon the land of another: Davis v. City of Crawfordsville, 119 Ind. 1, 12 Am. St. Rep. 561, and cases cited; Gould on Waters, 2d ed., sec. 271. A public corporation has no more right to collect water in an artificial channel, and cause it to flow upon the land of another, in a greatly increased quantity, than has a private land-owner. This is established law. It is clear, therefore, that if the township authorities did collect the surface water in an artificial channel, and thus cause it to flow upon the appellee's land, his rights of property have been invaded, and an action will lie. Another settled principle of law is here influential. That principle is this: If a public corporation, by its acts, makes necessary an outlet for the escape of water collected by it in artificial water-ways, that outlet it must provide. If it fails to provide the outlet made necessary by its own act, it is guilty of an actionable wrong: City of Evansville v. Decker, 84 Ind. 325, 43 Am. Rep. 86, and cases cited; Gould on Waters, 2d ed., p. 517, sec. 261. See also authorities cited in Elliott on Roads and Streets, 363. In this instance the public corporation united two ditches, and thus conveyed upon the appellee's land, by artificial water-ways, a great volume of water, that naturally flowed in a different direction, and this they did without providing an outlet. They were, therefore, the authors of a positive wrong.

The case before us does not fall within the rule that a public corporation is not liable for consequential injuries resulting from the improvement of a highway in a careful and skillful mode. Here the corporation constructed artificial ditches, and gathered the water in one volume; here it united two artificial water-ways; and here it changed the natural flow of the water. This was done in view of the fact

that the consequences of the union of the two ditches would necessarily cast an increased volume of water upon the appellee's land, for the surroundings were such, as the complaint shows, as rendered this result inevitable.

The rule declared in the case of City of North Vernon v. Voegler, 103 Ind. 314, does not govern this case. The reason for this conclusion is evident. In the case referred to there was simply negligence in constructing a culvert at a place where there was authority to construct it; while here there was no right to so construct a culvert as to unite two artificial channels, change the natural flow of water, and cast upon the appellee's land in an increased volume. There is here more than the negligent construction of a culvert; more than negligence in devising a plan, for there is a positive wrong, inasmuch as the natural flow of water is changed, and thrown upon the appellee's land in a greatly increased volume.

It is assumed that the township officers had authority to construct the culvert, and it is asserted as a conclusion from the premise assumed, that they cannot be enjoined from doing what they have lawful authority to do. In support of this position, we are referred to the cases of City of Kokomo v. Mahan, 100 Ind. 242; Mayor etc. v. Roberts, 34 Ind. 471; Wilson v. Mayor etc., 1 Denio, 595; 43 Am. Dec. 719; and McOsker v. Burrell, 55 Ind. 425.

The assumption is not valid, and with it falls the conclu sion founded upon it. The assumption is not sustained by the authorities cited, nor has it any foundation in principle. This is obvious from what we have said, for the assumption cannot stand against the settled principle that water cannot be collected in artificial channels, the natural flow changed, the volume increased, and no outlet provided. It is one thing to grade a highway, and cast off surface water as a consequence of the grading, and quite another thing to change the natural flow, unite artificial channels, increase the volume of water, and cause it to flow upon private property in an increased volume. It is not the mere fact of constructing the culvert across the highway that constitutes the actionable invasion of the plaintiff's right of property, for the acts of the public corporation extend far beyond the mere construction of the culvert. The corporation may construct culverts, but it cannot destroy private property by uniting in one artificial channel a great body of water, changing the natural flow, and throwing the collected water upon the citizen's land.