Chicago, Kansas & Western Railroad Co. v. Morrow

Citation42 Kan. 339,22 P. 413
CourtUnited States State Supreme Court of Kansas
Decision Date05 October 1889
PartiesTHE CHICAGO, KANSAS & WESTERN RAILROAD COMPANY v. WILLIAM MORROW

Error from Woodson District Court.

ACTION by Morrow against the Railroad Company, to recover damages for defendant's right-of-way across plaintiff's land. Trial on March 15, 1887, and verdict for plaintiff for $ 750. New trial denied, and judgment on the verdict for plaintiff. The company brings the case to this court.

Geo. R Peck, A. A. Hurd, and Robert Dunlap, for plaintiff in error.

G. R Stephenson, and W. H. Slavens, for defendant in error.

HORTON C.J. All the Justices concurring.

OPINION

HORTON, C. J.:

It is first insisted that this case was prematurely tried. This claim, however, is decided adversely in Railroad Company v. Wilkinson, just disposed of. The facts in that case upon this point are the same as those in this.

Again, it is insisted that the court should have given the instruction prayed for by the railroad company, "that an independent action for damage to the land in question, or crops, would lie against the company by reason of its damming or obstructing a natural watercourse." In support of this, it is claimed that there was testimony tending to show that the embankment of the railroad prevented the water from flowing in a natural watercourse, as such a course is defined in Palmer v. Waddell, 22 Kan. 352. The testimony of the depression or slough on the premises of the land-owner was in substance as follows. Mr. Turner testified:

"Q. Are you acquainted with the natural drainage of this land of Morrow's, and the lands northeast of it? A. Yes, sir.

"Q. How are they drained, if you know? A. There is a slough that arises on section 31, north of the road running from here to Neosho Falls, and runs across the public highway through the north half of the northwest quarter of 36, and it runs down within -- well, I would say, three or four rods of Morrow's house; and it runs in a southeast direction from his house, through the farm.

"Q. As it is now, how will that naturally be affected? A. There is no apparent drainage at present; that is, the railroad has cut him off from Harter's land, and they have made a cut there, and the cut is considerable deeper at the center, as far up as where this ravine runs, than it is at the creek. I believe that the water, to run over the ditch at all at the opening at the creek, would cover Morrow's land at any ordinary time.

"Q. About what is the volume of water that flows down that natural drainage in an ordinary season? A. That is a slough that in an ordinary shower will carry three to four feet of water. I have often seen it four feet deep of a rain. It is not a stream, or running water, but a slough that drains nearly all of the south half of the southwest...

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4 cases
  • Rait v. Furrow
    • United States
    • Kansas Supreme Court
    • 9 Junio 1906
    ... ... 374, 6 P. 581; C. K. & W ... Rld. Co. v. Morrow, 42 Kan. 339, 22 P. 413; C. K ... & N. Rly. Co. v. Steck, ... ...
  • Moyer v. Preston
    • United States
    • Wyoming Supreme Court
    • 27 Abril 1896
    ...a watercourse there must be a channel--a bed to the stream--not merely low land or a slough over which water flows. (Chicago, K. & W. R. Co. v. Morrow, 42 Kan. 339; Palmer v. Waddell, 22 id., 352; Gibbs v. 25 id., 1.) Tom Hooper and Gibson Clark, for defendant in error. The facts clearly sh......
  • Chicago, Kansas & Western Railroad Co. v. Steck
    • United States
    • Kansas Supreme Court
    • 8 Julio 1893
    ... ... 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 ... ...
  • Tompkins v. Brown
    • United States
    • Kansas Supreme Court
    • 7 Noviembre 1931
    ...a bed to the stream, and not merely low land or a slough over which water flows." Chicago, K. & W. R. Co. v. Morrow, 42 Kan. 339, syl., 22 P. 413. is sufficiently permanent if the accumulated surface water flows through a well-defined channel made by the water flowing with some regularity d......

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