Chi. R. I. & P. R'Y Co. v. Groves
| Decision Date | 21 January 1908 |
| Citation | 93 P. 755,1908 OK 5,20 Okla. 101 |
| Parties | CHICAGO R. I. & P. R'Y Co. v. GROVES |
| Court | Oklahoma Supreme Court |
¶0 1. NEW TRIAL--Grounds--Verdict Contrary to Law. When the evidence on the trial establishes the fact so clearly and indisputably that the court may instruct the jury to bring in a particular verdict, but neglects so to do, and is not requested to do so, and the jury returns a verdict contrary to what the law demands, then and then only should the court set aside the verdict of the jury.
2. COURTS--Rules of Decision--Decisions as Precedents--Civil Law. The common law, as modified by constitutional and statutory law, judicial decisions, and the condition and wants of the people in aid of the general statutes, being in force in this state, precludes the following of decisions based on the civil law as governing authority in this Jurisdiction.
3. WATERS AND WATER COURSES--Riparian Rights--Unobstructed Flow--Common Law. Where the common law prevails, every proprietor, upon water flowing in a defined channel, so as to constitute a water course, has the right to insist that the water shall continue to run as it has been accustomed, and no one can change or obstruct its course injuriously to him without being liable to damages.
4. SAME--Surface Waters--Diversion and Obstruction. Surface water flowing naturally or falling upon the soil may be diverted in its course, and even thrown back on the dominant estate whence it came, but with certain qualifications.
5. SAME. The exercise of such right by a lower proprietor must be reasonable, for proper purposes, in good faith, and with due care to inflict injury only when necessary.
6. SAME. The doctrine that the right may not be exercised want-only, unnecessarily, or carelessly is common-law doctrine, resting upon the common law, as well as upon the civil law.
7. SAME. A class of cases, based upon the adoption of the old common-law rule, hold without qualification that no cause of action can arise from throwing back surface waters upon the land of the dominant estate; but this is not supported by the weight of common-law authority.
8. SAME. The weight of authority in England and in the United States, though the cases are often difficult to reconcile, supports the proposition that one must so use his own property with due regard to the rights of another.
9. SAME. Where the surface water has been accustomed to gather and flow along a well-defined channel, which by frequent running it has worn or cut into the soil, so as to have well-defined banks, it may not be obstruction to the injury of the dominant proprietor.
10. SAME--What Constitutes Water Course. Where the natural conformation of the surrounding country necessarily collects therein so large a body of water, after heavy rain or the melting of large bodies of snow, as to require an outlet to some common reservoir, and where such water is regularly discharged through a well-defined channel which the force of the water has made for itself, and which is the accustomed channel through which it flows or has ever flowed, it constitutes a water course or waterway.
Error from the District Court, Comanche County; before Frank E, Gillette, Judge.
Action by Alva Groves against the Chicago, Rock Island & Pacific Railway Company for damages due to the overflow of land, caused by the negligent construction of defendant's roadbed. Judgment for plaintiff, and defendant brings error. Affirmed.
On the 17th day of February, 1903, Alva Groves, the herein defendant in error, as plaintiff, commenced an action in the probate court of Comanche county, in the territory of Oklahoma. Afterwards, on the 18th day of April, 1903, plaintiff fried his amended petition, and on the same day the plaintiff in error, the defendant in the court below; filed his answer, which was a denial of each and every allegation, except that the defendant was a corporation. The case was tried in the probate court, and resulted in a judgment for the plaintiff, and was appealed to the district court. Thereafter, on the 21st day of October, 1904, the case was tried, and a judgment resulted in favor of the plaintiff for the sum of $ 443.75.
For cause of action the plaintiff's petition consisted of three paragraphs or counts. In the first count he alleged: That the defendant constructed a line of railway across his homestead in the month of May, 1902, and in constructing it threw up an embankment on said land "in crossing a draw or ravine thereon, which draw or ravine was in a natural water course created by the flow of surface water caused by the fall of rain in that community, and was and is the natural outlet for such water." That defendant in constructing said embankment failed to make a sufficient provision for the outlet of the water that might reasonably accumulate in said draw or ravine, but put in a small tiling, wholly insufficient to carry off said water, and that it accumulates about the track of said defendant after each heavy rain, and stands upon and covers for some length of time about 35 acres of plaintiff's land, killing all vegetation and making said amount of land valueless. He further alleged that the same was good agricultural land, and worth $ 11.25 per acre, or a totals value of $ 393.75. That prior to the construction of said embankment said water course was unobstructed, and water did not stand upon said land, but naturally flowed off; and plaintiff alleges, as a result of said obstruction, the destruction of the whole value of said land, in the sum of $ 393.75. In the second count the same facts are alleged with reference to the building of the road, the obstruction of the ravine, the accumulation of the water, and the rendering of the land valueless, with the additional allegation that the said 35 acres of land rendered valueless extended in a strip almost the entire width of his homestead, thereby dividing the remainder of his homestead or claim in two parts, and damaging the balance of the homestead independent of the 35 acres which were absolutely rendered valueless, in the sum of $ 200 additional, In the third count substantially the same allegations are made with reference to the construction of the road and the obstruction of the ravine, with the further allegation that on the 21st day of September the water which came down the draw or ravine was caused, on account of this construction of said embankment with insufficient outlet, to stand above the embankment, flooding 35 acres of he land to such an extent as to flow in his residence, a half dugout, a depth of four feet or thereabout, damaging the dugout to the value of $ 40, household goods to the value of $ 10, and wearing apparel to the value of $ 20, carrying away wood and posts to the value of $ 4, two saddles and three sets of harness to the value of $ 30, and injuring his well to the value of $ 50; also claiming damage to his pasture to the amount of $ 150, and causing the necessity of moving his fence, to his damage in the sum of $ 50. Plaintiff therein prayed judgment in the total sum of $ 947.45.
On the trial the plaintiff withdrew his claim for damages to the pasture, and limited his claim for damages from the overflow in September, 1902. The defendant on the trial admitted that the railroad company constructed the line or lines mentioned in the petition, and that it was, at the time of the trial, owned and operated by said railway corporation. On the part of the plaintiff, without objection on the part of defendant in error, he testified in his behalf that at the time of the institution of said action he was the owner of said land; that he, having homesteaded the same, had lived on the place ever since the 6th day of September after the opening, which was in August, 1901. On cross-examination plaintiff testified that he entered and filed on said quarter section of land under the homestead laws, and that he had proved up his claim. He further stated that he could not tell the date of his filing, but his best recollection was it was the 6th of September, 1901, and, further, that he had made no conveyance or mortgage to the same prior to the time of the alleged damage in 1902. It was admitted that plaintiff made no conveyance whatever to the railway company, but that the railway acquired right of way prior to plaintiff's homestead entry, and that the railroad embankment was constructed after plaintiff filed and entered upon said land. The testimony of plaintiff tended to show that the defendant's road and the embankment were constructed about May, 1902; that there were; heavy rains, equal to the September, 1902, rain, causing the overflow in question, prior to the time of the construction of said embankment, but that the same, prior to the construction, did not flood or overflow the said land; that the embankment was 13 or 14 feet high and about 200 yards long, practically the entire width of the homestead; that the distance from said embankment to the head of said creek or ravine is about 3 1/2 miles; that, after the overflow had reached to the channel, said ravine would run for several days; that the creek below the said road was something like it was above; that below the same the water spread out over the flat lands; that where they scraped dirt to make a fill the water was run around through the fill and on over a little bottom to the section line, the outside line of plaintiff's land; that, as a result of said overflows as a result of said embankment, said 35 or 40 acres had been rendered valueless for farming and grazing purposes; that for such purposes it formerly had a value ranging from $ 11.25 to $ 15 per acre; that said house or dugout was damaged in the sum of $ 40, household goods, $ 10, wearing apparel, $ 20, bridles, harness, and saddle, $ 21, and well in the sum of $ 50. The evidence on the part of the plaintiff tended to show that the tiling or sewer was not of such a size as might have reasonably been considered sufficient to...
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