Chicago, R.I. & P. Ry. Co. v. Davis

• Decision Date: 10 May 1910
• Citation: 109 P. 214,26 Okla. 434,1910 OK 124
• Parties: CHICAGO, R.I. & P. RY. CO. v. DAVIS.
• Court: Oklahoma Supreme Court

109 P. 214

26 Okla. 434, 1910 OK 124

CHICAGO, R.I. & P. RY. CO. v. DAVIS.

Supreme Court of Oklahoma

May 10, 1910

Syllabus by the Court.

If a railroad company so constructs its roadbed and ditches as to divert surface water from its usual and ordinary course, and by its ditches or artificial channels causes such water to be conveyed to a particular place and thereby overflows the land of another proprietor, which before the construction of such road, ditches, or channels did not overflow, the company will be liable to such proprietor for the injury.

Whether the ditches or artificial channels be constructed on the right of way at the time of the construction of the road as a part thereof or afterwards in the operation or maintenance of the same is immaterial.

Where the wrong is of a permanent nature and continuous, springing from the manner in which the ditch or channel is completed on account of the diversion of surface water, the land of the abutting proprietor necessarily being injured by such diverted water, such proprietor may treat the act of the railway company as a permanent injury and recover his damages in the consequent depreciation of the value of his property and in such case the recovery of the damage results in a consent on the part of such proprietor to such manner of maintaining such ditch or channel, concluding both him and any subsequent owner of such land.

Error from District Court, Comanche County; F. E. Gillette, Judge.

Action by D. E. Davis against the Chicago, Rock Island & Pacific Railway Company. Judgment for plaintiff, and defendant brings error. Affirmed.

See also, 101 P. 1118.

Kane J., dissenting.

W. C. Stevens, C. O. Blake, H. B. Low, and T. R. Beman, for plaintiff in error.

B. M. Parmenter, C. M. Myers, and C. O. Clark, for defendant in error.

WILLIAMS J.

In the case of C., R.I. & P. R. Co., Plaintiff in Error, v. H. C. Johnson, Defendant in Error (No. 2,200, decided by this court on March 8, 1910, but not yet officially reported) 107 P. 662, it was held: "If a railroad company so constructs its roadbed and ditches as to divert surface water from its usual and ordinary course and by its ditches or artificial channels, causes such water to be conveyed to a particular place, and thereby overflows the land of another proprietor which, before the construction of such road, ditches, or channels, did not overflow, the company will be liable to such proprietor for the injury." It was there also held to be immaterial "whether the ditches or artificial channels be constructed or made on the right of way at the time of the construction of the road as a part thereof or afterwards in the maintenance and operation of the same." Further, in this, as in the Johnson Case, the court instructed the jury that it was incumbent upon the plaintiff to show by preponderance of the evidence that the defendant by such ditch unnecessarily turned surface waters upon plaintiff's land in unnecessarily large quantities to plaintiff's damage and injury, in order to have a recovery against the defendant.

In addition to the cases cited in that case, we further call attention to the following cases: In Ostrom v Sills, 24 Ontario Appeals, 526, the court said: "The doctrine of the civil law has not been adopted by the courts of this province. As regards mere surface water precipitated from the clouds in the form of rain or snow, it has been determined that no right of drainage exists jure naturæ, and that, as long as surface water is not found flowing in a defined channel with visible edges or banks approaching one another and confining the water therein, the lower proprietor owes no servitude to the upper to receive the natural drainage. *** Generally speaking, the upper proprietor may dispose of the surface water upon his land as he may see fit, but he cannot, by artificial drains or ditches, collect it or the water of stagnant pools or ponds upon his premises, and cast it in a body upon the proprietor below him to his injury. He cannot collect and concentrate such waters and pour them through an artificial ditch in unusual quantities upon his adjacent proprietor." In Young v. Tucker, 26 Ontario Appeals, 169, the court said: "The right of the defendant to drain his land by ditches is undoubted, but with this right is the correlative obligation to so construct them as to conduct the water which may be carried thereby to a proper and sufficient outlet, so that the water which may be discharged therefrom will do no injury to other proprietors. Anything short of this must, I think, be regarded as negligence for which the defendant would be answerable. The governing principle in cases such as this is that one cannot prevent injury to his own property by transferring that injury to his neighbor's property." The case of Whalley v. Lancashire & Yorkshire R. W. Co. (1884) 13 Q. B. D. 131, which is cited in the Johnson Case, is also quoted at length with approval by the court in Young v. Tucker, supra. In Savannah, A. & M. Ry. v. Buford, 106 Ala. 303, 17 So. 395, Chief Justice Brickell, in speaking for the court, said: "The wrong intended to be guarded against is the diversion of water, causing it to flow upon the lands of another, without his will, which did not naturally flow there; and it is not deemed material whether the water is diverted from a running stream, or is surface water caused to flow where it did not flow before. Farris v. Dudley, 78 Ala. 124 ; Crabtree v. Baker, 75 Ala. 91 ; Nininger v. Norwood, 72 Ala. 277 ; Hughes v. Anderson, 68 Ala. 280 ; Mayor v. Jones, 58 Ala. 654; Mayor v. Coleman, 58 Ala. 570; City Council v. Gilmer, 33 Ala. 116 . In Hughes v. Anderson, supra, it was said by Stone, J., after a statement of the general doctrine as we have expressed it, that it could not be 'enforced, in the strict letter, without impeding agricultural progress, and without hindering industrial enterprises. Hence, minor, individual interest is sometimes made to yield to a large and paramount good.' But in this connection he further observed: 'This, however, must be weighed and decided with a proper reference to the value and necessity of the improvement of the superior heritage, contrasted with the injury to the inferior, and even this license must be conceded with great caution and prudence.' This case does not involve a discussion or consideration of this limitation of the general doctrine; for it is settled by the current and weight of authority that a railroad company has not more right to obstruct the natural flow of water by an embankment, or other artificial means, or by the collection of it into an artificial channel, forcing or conducting it to a discharge upon the lands of another, than it has, in the same way, to dispose of water from water courses, and it is liable for the resulting damage in the one case as in the other. Waterman v. Railroad Co., 30 Vt. 610 ; Railroad Co. v. Morrison, 71 Ill. 616; Railroad Co. v. Cox, 91 Ill. 500; Railroad Co. v. Hays, 11 Lea [Tenn.] 382, 47 Am. Rep. 291; Railroad Co. v. Davis, 68 Md. 281 , 6 Am. St. Rep. 440; [ Austin & N.W. Ry. Co. v. Anderson, 79 Tex. 427] 15 S.W. 484 ; Railway Co. v. Mossman, 90 Tenn. 157 25 Am. St. Rep. 670." See, also, Ala. Great So. R. Co. v. Prouty, 149 Ala. 71, 43 So. 354. In G., C. & S. F. Ry. Co. v. Helsley, 62 Tex. 596, the court said: "Even by courts which follow what is considered the common-law rule, if surface water is collected into artificial...