Chicago, Kansas & Western Railroad Co. v. Steck

• Decision Date: 08 July 1893
• Citation: 51 Kan. 737,33 P. 601
• Court: Kansas Supreme Court
• Parties: THE CHICAGO, KANSAS & NEBRASKA RAILWAY COMPANY v. ALOIS STECK

33 P. 601

51 Kan. 737

THE CHICAGO, KANSAS & NEBRASKA RAILWAY COMPANY v. ALOIS STECK

Supreme Court of Kansas

July 8, 1893

Error from Wabaunsee District Court.

ACTION by Steck against the Railway Company to recover damages. Judgment for plaintiff, October 10, 1889, for $ 288.50. The defendant comes here. The opinion states the facts.

Judgment reversed.

M. A Low, and W. F. Evans, for plaintiff in error.

1. The court erred in finding for the plaintiff below. The undisputed evidence shows that the water, the obstruction of which is complained of, was merely surface water; that the land over which it flowed was bottom land; that the drains that were filled up by the construction of the railway were built by the plaintiff below some years prior to the construction of the railway, and that the only times that water flowed in them were immediately after heavy rains. The evidence clearly shows that the water which was obstructed was nothing more than surface water. This being true, the court should have found in favor of the railway company, as the common-law rule in reference to surface water has long since been established in this state. The railway company was not required, in the construction of its railway, to provide culverts and passageways under its track for surface water. Gibbs v. Williams, 25 Kan. 214; C. K. & W. Rld. Co. Morrow, 42 id. 339; Johnson v. C. St. P. M. & O. Rly Co., 80 Wis. 641; Jones v. W. St. L. & P. Rly. Co., 18 Mo.App. 251. See, also, A. T. & S. F. Rld. Co. v. Hammer 22 Kan. 763; K. C. & E. Rly. Co. v. Riley, 33 id. 374.

The case of O'Connor v. Fond du Lac Rly. Co., 52 Wis. 526, is on all fours with the case at bar. In that case, the plaintiff, for the purpose of draining his low lands, had constructed a ditch, through which the surface water that gathered on his lands flowed to the river. In the construction of the railroad, the defendant filled up this ditch, and caused the water to back up and overflow plaintiff's premises. The court held that the defendant was not liable for the damages caused by the overflow, and that it had the absolute right to fill up the ditch without incurring liability.

The plaintiff below had been paid for all damages which the construction of the railway across the strip of land in question caused, as is shown by the release introduced in evidence. The construction of the railroad was lawful, and, having been made in a proper manner, the railway company incurred no liability thereby. Hannoher v. St. P. M. & M. Rly. Co., 37 N.W. 717-727.

2. The court erred in overruling the objection of the defendant below to the following question:

"Ques. What did you intend, before the water dammed and stood on your wheat field -- what did you intend to use this wheat field for? Ans. Wheat."

This question was objected to as being incompetent, irrelevant, and immaterial. The objection was overruled, and the defendant excepted at the time. This evidence was incompetent for all purposes, and should not have been accepted. It made no difference what the intention of the plaintiff was.

J. T. Keagy, for defendant in error:

1. We think that the case of Palmer v. Waddell, 22 Kan. 352, is applicable to this case; and that, though the channels are not defined at every point between their source and the place of obstruction, yet if, by reason of any peculiar surface features, as, if the channels led into a pond, or over a rocky ledge or stony place, and then resumed a defined channel, they could not be lawfully obstructed, especially if the channel had resumed itself already where the obstruction is made, notwithstanding the plaintiff in error might on its right-of-way have laid its roadbed south of the resumed channels. See, also, Union Trust Co. v. Cuppy, 26 Kan. 754; U. P. Rly. Co. v. Dyche, 31 id. 120; Gibbs v. Williams, 25 Kan. 214; A. T. & S. F. Rld. Co. v. Hammer, 22 id. 763; K. C. & E. Rld. Co. v. Riley, 33 id. 374.)

Defendant in error thinks that, he having imposed a burden on the strip, by making the ravines on it a receptacle of waters conducted there by sewers built by him before the conveyance to plaintiff in error of the strip, the strip remained charged with the burden imposed after the conveyance, without regard to reservations in the deed; and hence we think the railroad was not lawfully built when it closed up our sewers, which were easily visible when plaintiff in error built its road. See Boone, Real Prop., § 140; Lampman v. Mills, 21 N.Y. 507; Butterworth v. Crawford, 46 id. 349; Suffield v. Brown, 4 De G. J. and S. 185; Watts v. Kelson, Law Rep., 6 Ch. 166.

2. With reference to the second claim of error, let it be remembered that defendant in error had a very meager knowledge and ability to speak the English language; that plaintiff below in his petition had alleged that the waters were held upon his wheat field so as not to be able to use it for sowing fall wheat again, as he had intended. The question asked of witness was simply bunglingly asked. The idea of the intention of plaintiff below prior to the overflow was not aimed at in the question, but the intention aimed at was that which was thwarted by the long continuance of the waters on and remaining over the field, and not the original overflow. The answer, if the question was irrelevant, could do no harm, and plaintiff in error could suffer no substantial injury from the. answer.

JOHNSTON, C. J. All the Justices concurring.

OPINION

JOHNSTON, J.:

This was an action by Alois Steck to recover damages from the Chicago, Kansas & Nebraska Railway Company, resulting from the alleged obstruction of a watercourse, which dammed the waters and overflowed his cultivated land and destroyed crops of the value of $ 1,000. Prior to 1886, Steck was the owner of a tract of bottom land extending along Mill creek and in that year he sold a strip of the same 100 feet wide to the railway company, upon which to build its railroad, and conveyed the fee-simple title by a deed of general warranty. In the receipt for the money paid for the land, the company was released from "all damages sustained or to be sustained by me and tenants by reason of the construction and operation of the railroad of said company in a...