Drake v. Chi., R.I. & P.R. Co.

• Decision Date: 23 April 1884
• Citation: 19 N.W. 215,63 Iowa 302
• Court: Iowa Supreme Court
• Parties: DRAKE v. CHICAGO, R. I. & P. R. CO.

63 Iowa 302

19 N.W. 215

DRAKE

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

Supreme Court of Iowa.

Filed April 23, 1884.

Appeal from Van Buren district court.

Action to recover for damages alleged to have been sustained by reason of the accumulation of water on the plaintiff's land, caused by the construction of the defendant's embankment without the construction and maintenance of proper ditches and culverts. There was a trial to a jury, and verdict and judgment were rendered for the plaintiff. The defendant appeals.M. A. Low, for appellant.

H. B. Hendershot and Sloan, Work & Brown, for appellee.

ADAMS, J.

The road was constructed in 1870 by the Chicago & Southwestern Railroad Company. The defendant in 1872 succeeded to the rights of that company. At the time the road was constructed, the land in question was owned by the plaintiff's grantor. The plaintiff became the owner in 1874. From the time of the construction of the road, in 1870 to 1876, no damage appears to have resulted to the land in question. In the latter year the plaintiff began to complain. Soon afterwards the defendant constructed a ditch along its right of way from the plaintiff's land to an opening in the road where the same was constructed upon trestle-work. This ditch was reasonably successful as a drain until 1880, when it became obstructed by accumulated dirt and other matter, and while the defendant made some effort to remove the obstructions, they were not in fact sufficiently removed, and during the cropping seasons of 1880 and 1881, water accumulated upon the plaintiff's land, being prevented primarily by the embankment from escaping, and not afforded a sufficient outlet by the ditch. Certain crops were destroyed, and a portion of the land was rendered wholly untillable. The defendand contends that it did not become liable for any damages, and that, if it did, this action is barred by the statute of limitations; and furthermore, that the court mistook the proper means of damages, and allowed improper evidence to be introduced.

1. The first question which represents itself is as to whether the defendant owed the plaintiff any duty in respect to the surface water. The court below thought that it did. It gave an instruction in these words: “In my judgment the railroad company is under legal obligations in constructing its railroad through the country, in crossing farms and land generally, to so construct its embankment as not to flow surface water back from the land through which it passes. I do not think that the common law, with reference to the right of owners of town lots or other lands to fight surface water from them, can justly be made to apply to railroad companies.”

The general doctrine relied upon by the defendant to the effect that every land-owner has the right to exclude surface water from his premises was fully recognized in O'Connor v. Fond du Lac, A. & P. Ry. Co. 52 Wis. 526,S. C. 9 N. W. REP. 287, and held to apply even to railroad companies. The court in that case said: “The company has only obstructed a ditch which drained or carried off surface water from the plaintiff's premises. We do not think that the defendant was bound to keep that ditch open on its own land for the convenience of the plaintiff. In other words, the owner of land is under no legal obligations to provide a way for escape of mere surface water coming onto his land from the land of his neighbor, but has the right to change the surface so as to interfere with or obstruct the flow of such water.”

In Gannon v. Hargadon, 10 Allen, 109, a case between adjacent land-owners, the court said: “The right of the owner of land to improve and occupy it in such manner and for such purposes as he may see fit, either by changing the surface or the erection of buildings or other structures thereon, is not restricted or modified by the fact that his land is so situated with reference to that of adjoining owners that an alteration in the mode of its improvement or occupation in any portion of it will cause water which may accumulate thereon by rains and snows falling on its surface, or flowing on it over the surface of adjacent lots, either to stand in unusual quantities on other adjacent lands, or pass into and over the same in greater quantities or in other directions than they were accustomed to flow.” See, also, in this connection, Parks v. Newburyport, 10 Gray, 28;Wilson v. The Mayor, 1 Denio, 595;Cairo R. Co. v. Stevens, 73 Ind. 278;Barkley v. Wilcox, 86 N. Y. 140;Morrison v. Railroad Co. 67 Me. 353;Lynch v. Mayor, 76 N. Y. 69;Taylor v. Fickas, 64 Ind. 167;Gibbs v. Williams, 25 Kan. 214;Grant v. Allen, 41 Conn. 156.

As holding a different doctrine, the plaintiff cites Ogburn v. Connor, 46 Cal. 346;Footle v. Clifton, 22 Ohio St. 247;Porter v. Durham, 74 N. C. 769;Gillham v. Madison Co. R. Co. 49 Ill. 484;Gormley v. Sanford, 52 Ill. 158;Livingston v. McDonald, 21 Iowa, 160;Cornish v. C., B. & Q. R. Co. 49 Iowa, 378;Van Orsdol v. B., C. R. & N. R. Co. 56 Iowa, 470;S. C. 9 N. W. REP. 379.

In the case last cited the court held that a railroad company could not be allowed to obstruct a natural channel of water. In Livingston v. McDonaldthe court held that the owner of the higher land could not be allowed to collect water and precipitate it, in increased quantities, upon the land below to the injury of such land. The question as to whether a land-owner can be allowed, by changing the surface of his land, or erecting improvements thereon, to prevent the escape of surface water from adjacent land, where the same did not flow through any channel, has never been determined by this court; and we have to say that it appears to us that such question does not necessarily arise in the case at bar. The cases cited arose between adjacent owners.

There is no evidence that the defendant owns the land which it occupies with its road. Its right was probably that of an easement. It is not claimed by the plaintiff that the defendant is a mere trespasser, and, in the absence of any averment or evidence to that effect, we could not assume that it is. The parties have proceeded upon the theory that the defendant's occupancy is rightful. In the absence, then, of evidence as to the extent of defendant's right in the premises, we may assume that it is sufficient to make its occupancy rightful, and we can not assume more. We may proceed, then, upon the theory that the defendant has an easement. The plaintiff's testimony shows that the railroad crosses his land, and we find no evidence to the contrary. The defendant's estate then appears not only to be an easement, but it is one to which the plaintiff's estate is the subject or servient estate. The easement, we may assume, was acquired by proceedings for condemnation under the statute, or by purchase, and it matters not which. The important question is as to what the defendant or its grantor, the original owner of the easement, must be presumed to have paid for. In Stodghill v. C., B. & Q. R. Co. 43 Iowa, 26, it was held that the defendant paid for what the commissioners should properly have considered in their estimate, and among the things was not included the right to divert a natural stream of water. On the other hand, it is to be observed that in Sabin v. Vermont Cent. R. Co. 25 Vt. 363, it was held that the right-of-way damages covered the right to cast rock on the adjacent premises by blasting, so far as was necessary in the construction of the road. The draining of wells and the diversion of water-courses, it is said, are covered by the right-of-way damages where the same are necessary in the construction of the road. Prop'rs of Locks and Canals v. Railroad Co. 10 Cush. 385. If we could suppose a case where the construction of a railroad would necessarily interfere with the flow of surface-water, and cause it to accumulate and stand on the land from which the right of way is taken, the injury that would accrue therefrom should, we think, be considered by the commissioners, and embraced in their appraisement of right-of-way damages. The land-owner is entitled to be paid, not merely the value of the land taken, but for all incidental injuries which must necessarily result from the proper construction and maintenance of the road. Kucheman v. C., C. & D. Ry. Co. 46 Iowa, 366;Imlay v. Railroad Co. 26 Conn. 249.

But the undisputed evidence in the case at bar shows that the drainage of the surface water from the plaintiff's premises was easily maintainable by the construction and maintenance of a ditch along the defendant's right of way to its trestle-work. The case is not different from what it would have been if the defendant could have effected the drainage by the construction and maintenance of one or more culverts. Where the effect of a mere...