Chorman v. Queen Anne's Railroad Company

Decision Date15 October 1901
Citation19 Del. 407,54 A. 687
PartiesPHILIP H. CHORMAN v. QUEEN ANNE'S RAILROAD COMPANY
CourtDelaware Superior Court

Superior Court, Sussex County, April Term, 1901.

ACTION ON THE CASE for damages to the wheat crop of the plaintiff by reason of water being gathered along the embankment made by defendant road and discharged through trunks upon the lands whereon the plaintiff's wheat crop was growing. Facts appear in charge of Court.

The testimony of the plaintiff in response to interrogatories by his counsel, Mr. White, concerning his ownership and possession of the wheat crop was as follows:

Q. Were you farming in January or February, 1899?

A. Yes sir.

Q. Did you have any crops pitched at that time?

A. Yes sir; I had a crop of wheat sowed at that time.

Q. On whose land was it sowed?

A. My wife's.

Q. Whose crop of wheat was it?

A. Mine.

Q. In whose possession was the crop of wheat?

A. Mine.

Q. Who sowed it, supplied the manure and all that sort of thing?

A. I did. I found all.

Q. It was your crop of wheat?

A. Yes sir; my crop of wheat.

Q. By what right and how do you hold or possess the farm you now occupy, and occupied in 1899?

A. Well, my wife hired it on the death of her grandfather.

Q. Then how did you get it?

A. I simply took the farm and lived there and used it as my own. She had no voice in it. She gave up entirely to me.

Q. Who stocked the farm?

A. I did.

Q. Who had the rents and profits from it?

A. I did.

Q. Did she have any part or share in it?

A. No, sir.

Q. Did that relate to the entire farm?

A. That related to the entire farm.

Defendant's counsel moved for a nonsuit on the ground that the plaintiff's proof failed to show that he was a tenant of the land and entitled to the possession or ownership of the said crop of wheat, for damages to which, the action was brought; that the wheat crop was not goods and chattels, but was part of the realty growing upon the land, and there was no severance.

Second. The allegation in the narr was that the defendant designedly and maliciously caused the overflow of water upon the plaintiff's land, and the proof did not show such to be the fact; the proof being that the water was drained of necessity upon the low land where the plaintiff's wheat crop was growing, that being the only place where the water could go at that time out of that cut. There was a variance, therefore, between the allegation in the plaintiff's declaration and the proof. The plaintiff, furthermore, was not entitled to recover, as the great quantity of water arose from a phenomenal storm and was the act of God.

Third. That the alteration in the flow of mere surface water affords no cause for action to the person who may suffer loss or detriment therefor, against one who does no act inconsistent with the due exercise of dominion over his own soil.

Cooley on Torts, top page, 684; Hale on Torts, 426; 11 Cushing Reports, top page, 195.

LORE, C. J.:--

The motion for a nonsuit is refused.

PLAINTIFF'S PRAYERS.

First. That it is the duty of every owner of land, if he wishes to carry off the surface water from his own land, to do so without material injury or detriment to the lands of his neighbors, and if he cannot he must suffer the inconvenience arising from its presence, and cannot complain that others refuse to allow its passage over their lands.

24 Am. & Eng. Ency. of Law, 926; Pettigrew vs. Evansville, 3 Ann. Rep., 50.

Second. That if an owner of land divert the natural course of surface water upon his own land he must suffer the inconvenience himself and cannot carry it off upon the land of his neighbors.

Curtis vs. Eastern R. R. Co., 98 Mass. 428.

Third. That an owner of land has no right to gather the surface water upon his own land and discharge it by artificial means on the lands of his neighbor.

Curtis vs. Eastern R. R. Co., 98 Mass. 428; 86 Am. Decisions, 521.

Fourth. Railroad companies, like individuals, cannot gather the surface water on their lands into ditches and drains, and discharge the same in a body on other lands to their injury.

Whatty vs. Lancashire R. R. Co., 13 Q. B. Div., 131--17 Am. & Eng. Ruling Cases.

Fifth. That if the defendant could have carried the water off without injury to the plaintiff it was bound to do so.

DEFENDANT'S PRAYERS.

First. That a mere possession is not sufficient to show title to the crop of wheat, alleged to have been destroyed, unless proof be adduced sufficient to show that the plaintiff was vested with a good title thereto.

Second. That if the water caused to flow through the ditches on each side of the railroad tracks at Chorman's crossing, did not immediately flow upon said lands on which the crop of wheat was growing, as alleged in said declaration, but continued to flow on the defendant's lands for several hundred feet until the water reached the natural slope towards said wheat crop, then in that case the plaintiff cannot recover any damages whatever.

Third. That the said defendant had a legal right for the protection of its property and its passengers and freight, to use all proper means for the removal of any surface water caused by melting snow and rain occasioned by an extraordinary storm which endangered its road-bed.

Fourth. That if the said damages accrued by reason of an excessive rain and snow fall occasioned by an extraordinary or phenomenal storm, it being the act of God, the defendant is not liable.

Fifth. That if the cutting of the ditches was necessary by reason of the excessive rain and snow, all occasioned by an extraordinary or phenomenal storm, the defendant had the right to cut the same; any injury was the act of God.

Verdict for plaintiff for $ 135.

Robert C. White for plaintiff.

Charles W. Cullen and Charles M. Cullen for defendant.

LORE, C. J., and GRUBB and PENNEWILL, J. J., sitting.

OPINION

LORE, C. J., charging the jury:

Gentlemen of the jury:--Philip H. Chorman, the plaintiff, claims that in February, 1899, he was in possession of a tract of land situate in Broadkiln hundred in this county, through which the road-bed and the track of the Queen Anne's Railroad Company, the defendant, passed. That on that land he had growing a crop of wheat on about nineteen acres.

That on or about that date the defendant cut a ditch on each side of its railroad track, through a ridge or bank of earth called Chorman's crossing, from east to west; that through said ditches the defendant conducted and turned a large quantity of surface water which had accumulated from melted snow on the east side of the crossing, into and upon plaintiff's wheat field, where it remained for a long time, until thereby the wheat crop was destroyed, and he was damaged to the extent of the value of the wheat so lost. That the water would not have flowed upon his wheat field if the ditches had not been so cut.

The defendant on the other hand claims, that the plaintiff was not possessed of the wheat crop. That even if he was so possessed, that the wheat field was at the bottom of a large basin and that the same and other water would have found its way there even if the ditches had not been cut. Moreover, that the company had a right to so cut the ditches and discharge the water to protect its road-bed and assure the safety of passengers and freight. That the company is not liable because the damage resulted from an extraordinary snow storm.

This action is founded upon tort; that is, upon the wrongful act of the defendant.

In order to recover, therefore, the plaintiff must satisfy you by a preponderance of the evidence--

First. That he was in possession of the wheat crop.

Second. That the crop of wheat so in his possession was destroyed by the water wrongfully discharged upon it through the ditches cut by the defendant, and not by water coming from any other source.

If the plaintiff was not in possession of and entitled to the wheat, he cannot recover.

If you believe from the evidence, that the title to the land was in Chorman's wife, that with her consent and approval he was in possession of the land, and with the like consent and approval he furnished the manure, put the wheat crop in; that he was to have the rents and profits; that she was to have no part or share in it; that she gave it up entirely to him; in such case the relation so created whether verbal or written, express or implied, would give to him such legal possession of the wheat as to support this action. In other words, if you conclude from all the evidence in the case, that the husband was possessed of the wheat as his own and the wife was...

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