Campbell v. Russell

• Decision Date: 15 January 1965
• Docket Number: No. 8189,8189
• Citation: 132 N.W.2d 705
• Parties: Everett CAMPBELL, Plaintiff and Respondent, v. Charles RUSSELL, Defendant and Appellant.
• Court: North Dakota Supreme Court

Page 705

132 N.W.2d 705

Everett CAMPBELL, Plaintiff and Respondent, v. Charles RUSSELL, Defendant and Appellant.

No. 8189.

Supreme Court of North Dakota.

Jan. 15, 1965.

Syllabus by the Court

1. Whether a new trial shall be granted on the ground of insufficiency of the evidence to sustain the verdict is in the sound judicial discretion of the trial court where there is a substantial conflict in the evidence, and the Supreme Court will not interfere if there is not an abuse in the exercise of such discretion.

2. A motion for a new trial on the ground of excessive damages appearing to have been given under the influence of passion or prejudice is addressed to the sound judicial discretion of the trial court, and the Supreme Court will not interfere unless an abuse of discretion is shown.

3. The evidence is examined and it is held, for reasons stated in the opinion, the trial court did not abuse its discretion in denying a new trial.

Hjellum, Weiss, Nerison & Jukkala, Jamestown, attorneys for defendant and appellant.

Mackenzie & Jungroth, Jamestown, attorneys for plaintiff and respondent.

TEIGEN, Judge.

The defendant has appealed from an order denying a motion for new trial. The motion was made on two grounds: Insufficiency of the evidence to justify the verdict and excessive damages given under the influence of passion or prejudice.

The plaintiff sued the defendant for damages to his crop and summer fallow. The plaintiff's land lies adjacent and to the east of defendant's land. The plaintiff claims the defendant ditched and drained sloughs, potholes, and low areas on his land, causing water to run onto the plaintiff's land to his damage. The plaintiff is the owner of the Southwest Quarter of Section 29. The defendant is the owner of the South Half of Section 30. The jury awarded damages to the plaintiff for the years 1960 and 1962 in the amount of $1,300.

A railroad and U. S. Highway No. 281 run parallel diagonally from southeast to northwest across the defendant's southwest quarter. Sloughs and potholes are located on both sides of the railroad track and highway. There are culverts through the railroad grade and the highway grade. There are about 11 sloughs or potholes on the defendant's land, most of which were being drained by drainage ditches which had been constructed thereon in accordance with plans furnished by the Soil Conservation Service.

The entire area of both plaintiff's and defendant's land, and adjacent lands, drain naturally toward the east. A graded county road containing two culverts, each 18 or 20 inches in diameter, is located between the plaintiff's and defendant's land. A portion of a very large slough is located on the east side of the plaintiff's land. This slough covers approximately 100 acres, approximately 10 or 11 acres of which are located upon the plaintiff's land. Surface waters running from the west to the east across the defendant's and plaintiff's land finds its way into this slough.

There was an unusual amount of moisture in the years 1960 and 1962. Surface waters from the defendant's land, as well as some from land immediately to the north and south, drained and ran across defendant's land in a generally easterly direction to the county road grade, through the two large culverts onto the plaintiff's land, and eventually into the big slough at the east edge of the plaintiff's land. It is plaintiff's claim that additional waters flowed onto his land which resulted from the drainage of sloughs and potholes by the defendant. This caused excess waters which would not naturally have escaped eastward to run upon plaintiff's land. It is his contention that these excess waters caused the damages complained. of. A long narrow grassed area extended eastward on plaintiff's land beginning at the county highway in the vicinity of the culverts. It extended to, or almost to, the big slough on the east side of plaintiff's land. In 1959 the plaintiff plowed up a portion of this grassed area but the evidence does not clearly establish what portion was plowed. It was illustrated to the jury and the trial judge upon a blackboard drawing which is not in evidence. It is the contention of the defendant that this is a natural drainway or waterway across which surface waters naturally would drain if permitted to remain in the state of nature. Both parties agree that surface waters, when they accumulate in sufficient quantity, naturally drain toward the east but the plaintiff denies his grassed area is a drainway or waterway.

The evidence is also in conflict as to the area covered by the sloughs and potholes drained by the defendant. The defendant contends that the sum of the surface areas of the potholes and sloughs which he drained equalled less than two and one-half acres. The plaintiff testified that the sum of the areas equalled approximately 20 acres. The defendant included in his estimate a large slough located on the west side of the railroad track and U. S. Highway No. 281, which he claims also drained towards the east through the railroad and highway culverts, and the water eventually found its way to the plaintiff's land.

The defendant denies that in the years 1960 and 1962 the waters from the slough west of the railroad track and U. S. Highway No. 281 drained to the east. He contends the culvert in the grade of U. S. Highway No. 281 was 16 inches higher than the culvert in the railroad grade and that the water in the years in question did not get high enough to run through the upper culvert. The plaintiff, on the other hand testified that he saw the water running through the culvert in an easterly direction. He testified that in 1962 it ran for about three months.

The only testimony pertaining to damage was that adduced by the plaintiff. It was uncontroverted. The case was submitted to the jury on instructions by the court which were agreeable to both parties.

The defendant's specifications of error as to the insufficiency of the evidence to justify the verdict are predicated on the following grounds: (1) There is no evidence to show that plaintiff's damages, if any, were proximately caused by the water coming from the areas drained by the defendant; (2) The evidence shows the water drained by the defendant was drained into a natural drainway which defendant was legally entitled to have kept open; (3) The evidence establishes that water from several hundred acres of other land, including plaintiff's land, drained onto the damaged area and the water drained by the defendant constituted only an insignifcant percentage thereof; and (4) The plaintiff's land area flooded was so much greater than the area drained by the defendant that it was physically impossible for the water drained to flood plaintiff's land.

The defendant's specifications of error as to excessive damages given under influence of passion or prejudice are predicated on two grounds: (1) The damages allowed for loss of summer fallow were purely speculative and unfounded; and (2) Damages allowed were excessive, indicating that the same were allowed as a result of passion or prejudice.

The verdict was received from the jury on April 2, 1963. The motion for new trial was argued on June 14, 1963. The court ruled orally from the bency following the argument. He stated in part:

'From the evidence and the record, I think that the verdict of the jury should stand, that the evidence is sufficient to back up the verdict that was reached. I don't think there was any reason to believe that the damages were excessive and based upon passion and prejudices. I don't think there is anything in the record to indicate that at all. The verdict was substantially less than the amount asked in the Complaint, and this was in accordance with the evidence that was brought out.'

Whether a new trial shall be granted on the ground of insufficiency of the evidence to sustain the verdict lies in the sound judicial discretion of the trial court when there is a substantial conflict in the evidence. If there is not an abuse in the exercise of such discretion, this court will not interfere. Haslam v. Babcock, 71 N.D. 363, 1 N.W.2d 335, second case 72 N.D. 581, 10 N.W.2d 239; Stokes v. Dailey, N.D., 97 N.W.2d 676; Kohler v. Stephens, 74 N.D. 655, 24 N.W.2d 64; Butler v. Aetna Insurance Co., 64 N.D. 764, 256 N.W....