Buel v. Chicago, Rock Island & Pacific Railway Co.

• Decision Date: 23 April 1908
• Docket Number: 15,373
• Citation: 116 N.W. 299,81 Neb. 430
• Parties: CHARLES L. BUEL ET AL., APPELLEES, v. CHICAGO, ROCK ISLAND & PACIFIC RAILWAY COMPANY, APPELLANT
• Court: Nebraska Supreme Court

116 N.W. 299

81 Neb. 430

CHARLES L. BUEL ET AL., APPELLEES, v. CHICAGO, ROCK ISLAND & PACIFIC RAILWAY COMPANY, APPELLANT

No. 15,373

Supreme Court of Nebraska

April 23, 1908

APPEAL from the district court for Lancaster county: ALBERT J CORNISH, JUDGE. Affirmed.

AFFIRMED.

M. A Low, Billingsley & Greene, P. E. Walker, P. F. Greene and E P. Holmes, for appellant.

Charles O. Whedon, contra.

OPINION

REESE, J.

This is the second time this cause has appeared in this court. The case upon the former hearing is reported in 76 Neb. 420. The action is for damages alleged to have resulted to the growing crops of plaintiffs, caused by the damming up and changing of a watercourse on the land of plaintiffs by an embankment created for defendant's railroad track. Two streams, referred to as the North and South Forks of Salt creek, pass through plaintiff's land, forming a junction below or after passing beyond plaintiff's boundary line. At a point where it is claimed the cause of damage to plaintiffs was located the distance between the two streams was approximately a quarter of a mile. In 1893 the defendant constructed its railroad across plaintiffs' land, crossing the streams at the points designated, constructing a pile bridge across the north fork some 200 or more feet in length, thus, as is claimed, allowing ample room for the passage and flow of the stream under the bridge. A similar bridge was constructed across the south fork about 150 feet in length, thus providing ample space for the flow beneath the bridge of the south fork. In 1898 the bridge across the north fork was taken out, the creek bed filled, and a new channel cut along the west or upper side of the railroad track, diverting the water from the north to the south stream, causing it to empty into the south stream just above the bridge. The 150-foot pile bridge was taken out, and a steel bridge about 90 feet long, resting upon concrete abutments, substituted in its stead. The embankment extending from one stream to the other was some 20 or 25 feet in height, leaving no other escape of the water for both streams than under the steel bridge above referred to. The land just above the embankment and bridge was farm land owned by plaintiff Buel and leased to plaintiff Willi, the rent to be paid by a division of the crops and of the income from raising live stock. It is alleged by plaintiffs that in the month of July, 1902, the water of these two streams was, by reason of the inadequate opening in defendant's railroad grade, dammed and backed up over and upon plaintiffs' farm, destroying the growing crops and some of their live stock thereon. The petition contains the usual averments required in such cases. The answer admits the construction of the railroad bed and grade substantially as above set forth; denies all negligence in the construction of the grade and changing the channel of the north stream, or that plaintiffs' loss, if any, was in any way attributable to any act of the defendant; and alleges that the rise of the water in the creeks and the flooding of plaintiffs' land, if so flooded, was caused by an unprecedented storm and rainfall which could not have been anticipated nor guarded against, and was due to the act of God, and no want of care on the part of defendant. The statute of limitations is pleaded, and a general denial is set up. The reply consists of a general denial. The trial resulted in a verdict and judgment in favor of plaintiffs, and from the judgment defendant has appealed.

There seems to be no question but that defendant's railroad was constructed as above stated and as claimed by plaintiffs. It may also be said that the flood of water coming down the two streams was unusually great, and that the property of plaintiffs was destroyed to at least the extent of the amount named in the verdict and judgment. The principal questions submitted to the jury were as to the nature and extent of the storm and flood, that is, whether they should be classed as what is known in law as the act of God and for which defendant could not be held liable, and whether the changing of the course and flow of the north stream and the closing of the old channel should be classed as a negligent act; in other words, whether the provision made for the escape and flow of the water through the one channel and under the one bridge, of smaller capacity than either one of the two as originally constructed, was such a provision for the escape of the water as would protect the property of plaintiffs from damage from such floods and high water as might have been reasonably expected, judging by the topography of the country and the past history of the streams. These questions were submitted to the jury upon more or less conflicting testimony, and were for its determination. It could serve no good purpose to set out the evidence upon the two propositions, for it is thought this statement will be conceded to be correct.

Upon the trial the court upon its own motion gave 15 instructions to the jury. The defendant requested the giving of 13 others all of which the court refused to give. All instructions given were excepted to by defendant, as well as the refusal to give those requested. As the substance of the instructions refused was largely contained in the instructions given by the court we will not notice them further. The instructions given by the court are in the main such as have heretofore had the approval of ...