Denver & R.G.R. Co. v. Morrison

• Decision Date: 27 March 1893
• Citation: 3 Colo.App. 194,32 P. 859
• Parties: DENVER & R.G.R. CO. v. MORRISON.
• Court: Colorado Court of Appeals

32 P. 859

3 Colo.App. 194

DENVER & R.G.R. CO. v. MORRISON.

Court of Appeals of Colorado

March 27, 1893

Appeal from district court, Chaffee county.

Action by George Morrison against the Denver & Rio Grande Railroad Company for the overflow of plaintiff's land, caused by the alleged negligent construction of defendant's water tank. From a judgment in plaintiff's favor, defendant appeals. Affirmed.

Wolcott & Vaile and C.S. Libby, for appellant.

G.K Hartenstein, for appellee.

BISSELL J.

For many years the appellee, Morrison, was the owner and occupant of a ranch along the course of a mountain stream called "Morrison Creek." The Rio Grande Railroad Company constructed its line in the vicinity of Morrison's premises, and built a water tank for the use of its trains in close proximity to Morrison's inclosures. These inclosures contained the usual stables and corrals for his stock, and a house for the occupation of his family. At a point very close to Morrison's yards, and where the tank was built, the creek made a bend, and went to one side of Morrison's premises, in its course to the river. The water supply for the tank was taken out of the creek, higher up the stream, and probably about 1,000 feet from its location. The waste pipe, which discharged the overflow, ran but a short distance from the tank to the creek, and discharged just above Morrison's yards. The use of the tank was, of course, intermittent, and water was only drawn from it as trains passed, and the engines required water. At such times the tank was partially emptied, the overflow ceased, and the discharge recommenced when the tank became full. The water was constantly running for the purposes of keeping the tank filled, and the pipe from freezing. The result of this practice was that in the cold weather of the winter the overflow would freeze, and ultimately stop up the bed of the creek with a solid mass of ice, and leave no way for water. Under these circumstances the water overflowed its banks, and flooded Morrison's premises.

Substantially the judgment is not challenged because of any specific error committed by the trial court with respect to the application of the law to the facts. It has been seriously contended in the briefs and on argument that the judgment was wholly unsupported by the testimony, and that, therefore, the court erred in refusing to direct a nonsuit, and in entering judgment against the railroad...