Turning directly to the history of the matter in Australia, and without going through all the English authorities that are collected and discussed in the Australian cases: First, in Butcher v. Borough of Woollahra [5] , the Supreme Court of New South Wales held that the owner of lower land has a right, by erecting a dam or otherwise, to pen back the surface drainage from higher land (if it be not flowing in a defined channel as a natural watercourse). Martin C.J. expressly founded his decision on statements in the judgments in Nield v. London & N. W. Railway [6] , including Baron Bramwell's observation "the flood is a common enemy against which every man has a right to defend himself. And it would be most mischievous if the law were otherwise, for a man must then stand by and see his property destroyed out of fear lest some neighbour might say "You have caused me an injury" " [7] . In Vinnicombe v. MacGregor [1] Madden C.J. reached a contrary conclusion after a most elaborate examination of the topic. He pointed out that the question in that case was not, as in cases concerning riparian rights it generally is, "to whom do the blessings of natural waters belong, but who must bear its curses". There was no defined watercourse, merely shallow depressions along which surface water flowed. The conclusion of the learned Chief Justice accorded in substance with the rule of the civil law: "The owner of land of lower level cannot obstruct natural surface water, flowing in its natural line of flow, in the course of the natural and ordinary use of land of upper level, from such land of upper level, unless he can and does so in a manner which will not injure such land" [2] . On appeal to the Full Court of the Supreme Court of Victoria the majority took much the same view, but A'Beckett J. powerfully dissented. In his opinion a lower landowner had a right to exclude all natural waters from his land, except of course those in streams to which riparian rights attached. It was ultimately held by the whole Court that if by works done by the upper owner or his predecessors the level of the lands was altered so as to increase or concentrate the flow of flood water the lower owner might dam it back. The question came again before the Supreme Court in Walker v. Nelson [3] when the Court (Madden C.J., Hodges and Cussen JJ.) held that the principle stated by the majority in Vinnicombe v. MacGregor [1] , was correct, but that it did not apply because the natural surface of the land had been altered. When that case came before this Court, Nelson v. Walker [4] , Griffith C.J. and O'Connor J. criticized the decision in Vinnicombe's Case [1] and expressed strong opinions that the civil law principle is not part of the common law; and further that, if it is, it only applies to country lands. Their statements are dicta only, for the decision of the Court turned on other matters. They are, however, strong dicta, although it may be that the distinction made between country lands and urban lands is not, as it was expressed, properly based on the civil law. Roman law distinguished between urban and rustic praedial servitudes; but the distinction does not depend on the location of the land but on the nature of the right. However that may be, and whatever be the exact principles of the civil law, the dicta in Nelson v. Walker [4] were very positive that in the common law as it existed in Australia the civil law notion of a natural servitude had no place. And this it had been decided in Solicitor-General v. Smith [5] was the position also in New Zealand. In that case Williams J. said: "The question of how far, by English law, the proprietor of land is bound to receive on to his land surface-water coming on to it from higher land does not appear to me to be satisfactorily settled. No doubt the proprietor of the lower land has no right of action against the proprietor of the land above for simply allowing it to come, but it does not follow that the proprietor of the land below, unless the water comes in a natural stream flowing in a defined channel, cannot, by raising the level of his land, or by barriers, or otherwise, prevent the surface-water coming on to it. That the lower proprietor can do so appears to be recognized by the courts of those States of the American Union which profess to follow the common law as distinguished from the civil law. The civil law recognizes the existence of a servitude which compels the lower owner to receive the surface-water. I have been unable to satisfy myself that there is any corresponding easement at common law. No doubt there are expressions to be found in the books which seem to infer that the proprietor above has this right as against the lower. No case, however, can be found in England where the proprietor above has recovered when mere surface-water has been retained on his land through the neighbour below doing something on his own land which prevents the water coming there" [1] . These observations it will be noticed were in relation to mere surface water. Whatever uncertainty there might be about that, the learned judge did not doubt that a landowner might erect a bank on his own land to protect it against flooding by surface water concentrated and discharged from higher land by a ditch. And the lower landowner's right was not, he held, lessened because the bank that he made excluded some water that might have flowed from the higher land without the aid of the ditch. In Canada too the civil law doctrine of a natural servitude had no general acceptance in Provinces other than Quebec.