Blunck v. Chi. & N. W. Ry. Co.

• Decision Date: 08 April 1909
• Citation: 120 N.W. 737,142 Iowa 146
• Court: Iowa Supreme Court
• Parties: BLUNCK v. CHICAGO & N. W. RY. CO.

142 Iowa 146

120 N.W. 737

BLUNCK

v.CHICAGO & N. W. RY. CO.

Supreme Court of Iowa.

April 8, 1909.

Appeal from District Court, Woodbury County; Wm. Hutchinson, Judge.

Suit at law to recover damages for flooding farm lands. The defendant appeals from a judgment for the plaintiff. Reversed on rehearing.

For original opinion, see 115 N. W. 1013.Wright, Call & Sargent, James C. Davis, George E. Hise, and A. A. McLaughlin, for appellant.

Dickson & Page, for appellee.

SHERWIN, J.

The opinion on the original submission of this case will be found in 115 N. W. 1013. A rehearing was granted becauseof our conviction that a wrong conclusion was reached in the fourth division of the opinion filed, and this opinion will discuss that feature of the case only. On all other matters the opinion of our lamented Brother BISHOP is adopted and incorporated herein in his own language, except as to a few minor matters of detail. Plaintiff claims that during the year 1903 he was the lessee in possession of the Barlow lands lying in townships 46 and 47, range 88. Respecting the lands, it is conceded that the general slope thereof is to the south, and they are traversed in part by two streams, Big Whisky creek and Little Whisky creek, flowing down from the higher lands lying to the north. Big Whisky creek flows on to the south; the waters ultimately finding their way to the Missouri river. Little Whisky creek, on reaching the center of section 25, ceases to be a stream with defined banks. From there the waters spread out over the general surface to the south. Prior to said year 1903 the defendant had constructed its line of railway east and west across the southern portion of the lands. In general the roadbed as constructed consisted of an earth embankment; the top being brought to an elevation of four or five feet above the natural surface. At the crossing of the Big Whisky a bridge was put in 108 feet in length. Some distance to the west another bridge 75 feet in length was put in. Between the bridges were put in two culverts, each about four feet square. Plaintiff charges negligence in that the openings for the passage of water in times of heavy rainfall and floods were inadequate; further, that the space beneath the bridge spanning the Big Whisky was allowed to become obstructed and partially closed up by earth and débris. And he says that during the flood period in the summer of 1903, by reason of the negligent conditions so brought about and existing, the waters which overflowed the banks of the creeks, augmented by the heavy rainfall, were cast back and forced to stand upon certain of his lands, whereby his hay crop growing thereon was injured and destroyed, to his damage in an amount stated. The allegations of the petition were met by a general denial.

1. The allegation of the petition is that plaintiff during the year 1903 was in possession of the lands as lessee of one Barlow under a written lease. On the trial a son of plaintiff was called as a witness, and asked whether or not his father was occupying the lands in question in the year 1903 as a tenant of Barlow. This was objected to as hearsay, as calling for a conclusion of the witness, and not the best evidence; and in connection with the objection, and as a basis therefor, attention was called to the fact that the petition alleged a written lease. The objection was overruled, and the witness answered the question in the affirmative. It is said that here was error. We think otherwise. The question was directed to the fact of occupancy. That fact was material to the issue, and it could not have been proven in any other way than as attempted. It is true that the petition alleges a written lease; but the question objected to had no relation to the matter of the existence of such an instrument, nor, conceding its existence, to the terms or provisions thereof. And certainly, where material, one may prove the fact of his occupancy of real estate by parol, even though it is made to appear in some other way that the contract of lease had been reduced to writing. “The fact of appellant's tenancy or occupancy of the real estate was a fact which existed independently of any written lease which he might hold, and, as such, might be shown by parol evidence.” Hammon v. Sexton, 69 Ind. 37. The case of Wallace v. Wallace, 62 Iowa, 651, 17 N. W. 905, relied upon by appellant, is not in point. There the parties to the action were claiming rights in the real estate, which was the subject of the action, adversely to each other.

2. Several witnesses were called on behalf of plaintiff, and, over objection, allowed to testify that the bridges and culverts in the railway embankment were insufficient to carry off the water in times of flood. The objection made in each instance was that the evidence was incompetent, that the question called for a conclusion of the witness, and the witness was not shown to be competent. There was no error. Not only the particular questions objected to, but the general course of the examination, plainly indicated that the several witnesses were called upon to state to the jury the fact conditions as such had actually come within their observation. They were not called upon to draw conclusions, or to contribute opinions. They were asked to state what were the facts made visible to their eyes, and, as bearing upon the issue of improper construction, the evidence was competent. Willitts v. Railway, 88 Iowa, 281, 55 N. W. 313, 21 L. R. A. 608.

3. Plaintiff did not put in evidence the written lease of which allegation was made in the petition, nor did he go farther in making proof of his rights in the real estate than to show that he was in possession as a tenant. Defendant requested an instruction, in substance, that there could be no recovery, for the reason that the evidence did not make disclosure of the amount or extent of the interest, if any, of the plaintiff in the lands, or in the grass and hay claimed to have been injured; and error is predicated upon the refusal of the court to direct the jury as so requested. We think there was no error. In all cases sounding in trespass where the injury complained of is to the possession, and the person proceeded against is a mere tort-feasor, proof of possession alone in the plaintiff is sufficient to maintain the action. Possession being shown, the intruder cannot put plaintiff on proof of his title. 28 Am. & Eng. Ency. p. 573. And, in the case of a tenant seeking to recover for crops injured or destroyed, it is not material that within the possibilities he may be holden to his landlord or some third person for an interest in such crops. Jones on Landlord & Tenant, § 645. Proof of possession being sufficient, plaintiff was not bound to go any farther and exhibit the muniments of his title. It is a rule of our statute that a party to an action shall not be compelled to prove more than is necessary to entitle him to the relief asked for. Code 1897, § 3639.

4. The record shows that there is no well-defined water channel west of Big Whisky creek within the limits of the land involved in this controversy, and that the natural flow of the surface water is to the south and west, in a broad sheet extending across the entire Barlow ranch west of Big Whisky creek. Based upon the facts so shown, the defendant asked the following instructions, which were refused:

“If the jury find, from a fair preponderance of the evidence, that the land west of Big Whisky creek, over which defendant's embankment and railway track were constructed and located, is nearly level, that there is no natural or artificial stream crossed by said embankment, and no defined channel or way in which the water, coming onto said land to the north of said railway track, could pass to the south, even if defendant's right of way and railway embankment had not been constructed, and if you further find that, by reason of the character and condition of the land at the time defendant's embankment was originally constructed, such railway construction would necessarily interfere with the flow of surface water and cause it to accumulate and stand on the land from which the right of way is taken, then, if you so find, you are instructed that for such necessary interference with the flow of surface water as was occasioned by the proper construction of said railway over said land no recovery in this action can be had.

A railway company, by virtue of acquiring right of way across a tract of land, acquires the right to construct its track in the usual and ordinary way. It may construct it upon an embankment, if such is the better method, considering the character and lay of the ground in the immediate locality. It is not obliged to so construct its road as to avoid entirely the obstructing or interfering with the natural flow of surface water which does not flow in well-defined channels. On the contrary, it may divert and obstruct the flow of such water to the extent that the same may be reasonably necessary to accomodate the same to the customary and usual mode of constructing a railroad in such places, and to the extent reasonably necessary to enable the railway company to so construct and maintain its road as to promote the reasonable and safe operation of trains thereover.”

And on its own motion the court instructed as follows: “You are instructed, as a matter of law, that it is the duty of the railway company, in building its railroad, when it crosses a stream or lowland, to provide passageways for the water reasonably sufficient to allow it to flow through without being diverted from its natural course or being backed up so as to cause damages to the property of another.”

Complaint is made because the court refused to give the instructions asked by the defendant, and because it gave the one quoted. We think there was error in both respects. The requests correctly stated the rule that has been adopted by this court, and should have been given, and the...