Fossum v. Chi., M. & St. P. Ry. Co.

• Decision Date: 25 May 1900
• Citation: 80 Minn. 9,82 N.W. 979
• Court: Minnesota Supreme Court
• Parties: FOSSUM v. CHICAGO, M. & ST. P. RY. CO.

80 Minn. 9

82 N.W. 979

FOSSUM

v.CHICAGO, M. & ST. P. RY. CO.

Supreme Court of Minnesota.

May 25, 1900.

Appeal from district court, Fillmore county; Nathan Kingsley, Judge.

Action by Tollef K. Fossum against the Chicago, Milwaukee & St. Paul Railway Company. Verdict for plaintiff. From an order denying a new trial, defendant appeals. Affirmed.

Syllabus by the Court

This was an action to recover damages for the wrongful acts of the defendant in diverting the water from rain and melting snow from a natural channel, and casting it in destructive quantities upon plaintiff's land:

1. Held, that the evidence was sufficient to justify the trial court in submitting to the jury the question whether the water in question from rain and melting snow was accustomed to flow through a natural and well-defined channel.

2. Held, further, following McClure v. City of Red Wing, 9 N. W. 767, 28 Minn. 186, that the court did not err in charging the jury that, if the water was so accustomed to flow in such natural and well-defined channel, the defendant had no right to obstruct and divert the water to the injury of the plaintiff.

3. Upon the record in this case, it is held that the trial court correctly ruled that the injuries to the plaintiff's land must be regarded as permanent, and that the measure of his damages was the depreciation in its value caused thereby.

4. The question of the competency of a witness to give expert evidence is largely in the discretion of the trial court. Rule applied, and held that it was not reversible error for the trial court to sustain an objection to the competency of such a witness. Wells & Hopp, for appellant.

G. W. Rockwell, for respondent.

START, C. J.

The defendant's railway crosses the farm of the plaintiff from northeast to southwest at the foot of a bluff. From the top, and along the side of this bluff, water from rain and melting snow flows down to and along the north side of the defendant's roadbed. The plaintiff claims that for some 20 years prior to April, 1898, the defendant maintained a culvert under its roadbed across a well-defined natural channel, along and through which such water was accustomed to flow to the river, doing no injury to the plaintiff's land; that on the date stated the defendant wrongfully filled up the channel and culvert, and placed a new culvert under the roadbed at a point some 125 feet east of the old one; that it also dug a ditch leading from the natural channel at the point where the old culvert was filled up to the new culvert, thereby diverting the water from the natural channel, and discharging it in destructive quantities upon his cultivated field. This action was brought to recover the damages sustained by the plaintiff by reason of such alleged unlawful acts. Verdict for the plaintiff in the sum of $125, and the defendant appealed from an order denying its motion for a new trial.

The assignments of error, with one exception, raise two general questions: First. Did the trial court err in its charge to the jury and refusal to charge as to the defendant's right to divert the water by means of the ditch and culvert in question? Second. Did it submit to the jury the proper rule for assessing the plaintiff's damages?

1. Upon the first question the court charged the jury as follows: ‘The first question, then, for you to determine is this: Did the water which flowed down the side of this hill in times of rainfall and the thawing of snow flow down through a natural and well-defined channel or did it not? If it did, the defendant had no right to change the flow of that water so as to produce injury to the plaintiff. If it did not flow down through a natural well-defined channel, but discharged itself generally upon the right of way of the defendant, then the defendant could provide for its discharge from that right of way in such a manner as it saw fit.’ The defendant excepted to so much of the instruction as we have italicized, and also excepted to the refusal of the court to give this request: ‘That if the jury find from the evidence that it was reasonably necessary for the defendant to so improve its property to render it less hazardous, and to make it safe to operate its railroad, to prevent the washing of gravel and stones upon its track, to divert the flowage of surface water from the ditch leading from the old or west culvert to the new ditch and east culvert across its right of way and onto the plaintiff's premises, the jury must find for the defendant on this branch of the case.’ It is obvious that if the court was justified in giving...