Chi., B. & Q. R. Co. v. Emmert

• Decision Date: 22 December 1897
• Citation: 73 N.W. 540,53 Neb. 237
• Parties: CHICAGO, B. & Q. R. CO. v. EMMERT.
• Court: Nebraska Supreme Court

53 Neb. 237

73 N.W. 540

CHICAGO, B. & Q. R. CO.

v.EMMERT.

Supreme Court of Nebraska.

Dec. 22, 1897.

Syllabus by the Court.

1. Where an injury to the crops and lands of one is caused by the negligent construction of a railway embankment, which arrested and held upon said lands the flood waters of a natural stream, such party's cause of action accrues at the date of the injury, and not at the date of the negligent construction of the improvement.

2. In such case the injured party's measure of damages to his crops is their fair value at the time of their destruction; and his measure of damages as to the land is the difference in its value immediately before and after such flooding.

3. This court does not attempt a definition of surface water. Whether or not it is such should be determined from the facts of the case in which the question is presented.

4. The flood water of the Nemaha river involved in this case held not to be surface water, but a constituent part of such stream,--a natural water course.

5. Special damages, to be recovered, must be specially pleaded.

6. The ruling of the district court in the admission and rejection of evidence as to the plaintiff's measure of damages examined, and held prejudicially erroneous.

7. An allegation that the plaintiff's farm has been damaged by the construction of a railway embankment near thereto, because the farm has thus come to be known in the neighborhood as one liable to overflow, does not state a cause of action.

Error to district court, Richardson county; Bush, Judge.

Action by Oliver Emmert against the Chicago, Burlington & Quincy Railroad Company for damages caused by the construction of an embankment which held the flood waters on plaintiff's land. From a judgment for plaintiff, defendant brings error. Reversed.A. W. Agee, J. W. Deweese, and F. E. Bishop, for plaintiff in error.

Reavis & Reavis, for defendant in error.

RAGAN, C.

The Nemaha river is one of the natural water courses of the state, and drains a large area of territory. When floods or freshets occur, the channel of this river overflows, and the stream then becomes very much widened, extending and flowing at such times from the foothills on one side to the foothills upon the other side of the river's valley. In the valley of this river, in Richardson county, is situate the farm of Oliver Emmert. In 1883 the Chicago, Burlington & Quincy Railroad Company (hereinafter called the “Railroad Company”) constructed a road at right angles across the valley of this river, near said Emmert's farm. For the purpose of laying its ties and track thereon,the Railroad Company across this valley constructed an embankment of earth, and left no openings or culverts in the same through which the waters of this river, when out of its banks, might flow as they did prior to the construction of such embankment. In 1889 and 1892 freshets occurred. The channel of the river overflowed, and the waters spread out over the valley. The embankment arrested their progress, turned them back, and held them upon the lands of Emmert (situate just up the river from the embankment), and destroyed, as he alleges, his grass crop and pasture, a crop of standing corn, and permanently injured or depreciated in value his farm. To recover compensation for these injuries, he sued the Railroad Company in the district court of Richardson county, alleging that the Railroad Company, in omitting to construct culverts or openings in its embankment for the passage of the waters of the river in times of flood, had been guilty of negligence that had caused the injury to his property. The trial resulted in Emmert's obtaining a verdict and judgment, to review which the Railroad Company has instituted in this court error proceedings.

1. As already stated, the embankment was constructed in 1883. The injuries sued for occurred in 1889 and 1892, and one proposition relied upon here for a reversal of the judgment of the district court is that Emmert's cause of action arose at the time of the negligent construction of the embankment, or more than four years before the bringing of the action, and hence was barred when brought. This precise question was presented to this court in Railroad Co. v. Harlin, 50 Neb. 698, 70 N. W. 263; and we there held that the cause of action arose when the injury sued for occurred, and not at the time of the completion of the improvement negligently constructed which caused the injury. The authorities bearing upon the question under consideration are somewhat extensively examined in that case, and we see no reason for not adhering to the conclusion then reached.

2. Another contention of the Railroad Company is that its embankment was properly constructed for railroad purposes; that the overflow or flood water of this river was surface water; and, if Emmert was damaged by its construction of the embankment at the place and in the manner that it did, the Railroad Company is not liable therefor, as it owed no duty to an adjoining proprietor as to the manner in which it should exercise its right to build its railroad and protect its property from such surface water. But is the assumption of the Railroad Company, that the flood or overflow water of this river was surface water, correct? It must be conceded that many cases hold that the flood or overflow of a natural stream is surface water. See the rule stated and the authorities collated in 24 Am. & Eng. Enc. Law (1st Ed.) p. 903. But we are by no means satisfied with the doctrine of these cases nor with the reasoning on which they are based. Though they are in the majority, we do not think they are right. We shall not attempt to lay down a rule as a guide in all cases for determining whether waters are surface waters. Whether water is or is not surface water, within the meaning of that term, must be determined from the peculiar facts in the case in which the question is presented. But to say that the flood or overflow water of this Nemaha river, when out of its banks, and flowing from foothill to foothill, is not a part of the river itself, nor part of the natural water course, but mere surface water, is to contradict ordinary common sense. In one sense of the word, all the water of this river was at one time, perhaps, surface water. When this water was falling upon the watershed of this stream, when it was millions of aqueous threads, flowing towards the stream covering the surface of the watershed, then it was surface water; but when it reached the stream, became a part thereof, whether the stream was then flowing between its ordinary banks and in its ordinary channel, or whether it had extended beyond its channel, and was flowing from one foothill to the other, then this water ceased to be surface water, and...