Fossum v. Chicago, Milwaukee & St. Paul Railway Company
| Decision Date | 25 May 1900 |
| Docket Number | 12,169 - (76) |
| Citation | 82 N.W. 979,80 Minn. 9 |
| Parties | TOLLEF K. FOSSUM v. CHICAGO, MILWAUKEE & ST. PAUL RAILWAY COMPANY |
| Court | Minnesota Supreme Court |
Action in the district court for Fillmore county to recover $400 damages for filling up a culvert, diverting water, and discharging it on plaintiff's land. The case was tried before Kingsley, J., and a jury, which rendered a verdict in favor of plaintiff for $125. From an order denying a motion for a new trial, defendant appealed. Affirmed.
Diversion of Surface Water.
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.
Question for Jury.
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.
Charge to Jury.
2. Held, further, following McClure v. City of Red Wing, 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.
Measure of Damages.
3. Upon the record of 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.
Competency of Expert Witness.
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.
An owner may improve his land for the purposes for which such land is ordinarily used, and may do what is necessary for that purpose. He may build on it, or raise or lower its surface, even though the effect may be to prevent surface water which before flowed upon it from going upon it, or to draw from adjoining land surface water which would otherwise remain there, or to shed surface water over land on which it would not otherwise go. O'Brien v. City of St Paul, 25 Minn. 331; Jordan v. St. Paul, M. & M. Ry Co., 42 Minn. 172; Brown v. Winona & S.W. Ry. Co., 53 Minn. 259; St. Paul & D.R. Co. v. City of Duluth, 56 Minn. 494; Gilfillan v. Schmidt, 64 Minn. 29; Atchison v. Hammer, 22 Kan. 763; Taylor v. Fickas, 64 Ind. 167, 31 Am. R. 114, and cases in note; Gannon v. Hargadon, 10 Allen, 106; Johnson v. Chicago, 80 Wis. 641; Gray v. McWilliams, 98 Cal. 157, 21 L.R.A. 593, and note; Barkley v. Wilcox, 86 N.Y. 140. Defendant having legal right to divert the flow of surface water, plaintiff is not entitled to damages resulting therefrom. Taylor v. Fickas, supra. Placing the culvert in defendant's roadbed is according to the natural drainage of the land, and the fact that defendant at the time, or some time subsequent to the building of said road, located a culvert some distance west of the new one does not give plaintiff the right to remove, or estop defendant from removing, the culvert to where it now is. See Canton Iron Co. v. Biwabik Bessemer Co., 63 Minn. 367.
G. W. Rockwell, for respondent.
Defendant having acquiesced in and maintained this channel for more than twenty years, was estopped from changing it. Canton Iron Co. v. Biwabik Bessemer Co., 63 Minn. 367; Schnitzius v. Bailey, 48 N.J.Eq. 409; Ross v. Mackeney, 46 N.J.Eq. 140. Defendant had no right to divert the water from the regular channel, and discharge it on plaintiff's lands at a place where it did not before flow, or to collect the water into a ditch and discharge it in a volume upon the lower land to its injury, -- not even on the ground that it is more beneficial to the lower estate. Illinois v. Miller, 68 Miss. 760; 24 Am. & Eng. Enc. 928; East St. Louis v. Eisentraut, 134 Ill. 96; Osten v. Jerome, 93 Mich. 196; Baltimore v. Ranstead, 78 Md. 501. The course uniformly followed by surface water in flowing from one tract to another is a water course within the rule preventing changing the channel so as to obstruct the flow from the dominant estate. Ribordy v. Murray, 70 Ill.App. 527. A man must so use his own property as not unnecessarily to injure others; he may not turn water in destructive quantities upon adjoining lands. O'Brien v. City of St. Paul, 25 Minn. 331, 335; Rychlicki v. City, 98 Mo. 497. The fact that the old channel sometimes filled up and overflowed its banks does not make it less a natural water course. This cannot be treated as mere surface water accumulated on defendant's right of way. It was a natural water course, where the water from the bluffs for more than twenty years had flowed, nor is it a case where defendant in the improvement of its property sheds surface water upon plaintiff's premises. Weaver v. Mississippi & R.R. Boom Co., 28 Minn. 542; McClure v. City of Red Wing, 28 Minn. 186. The act of defendant in entering on plaintiff's premises and digging the ditch being wrongful, it is liable for all injuries which are the natural or proximate consequences of, or can be traced to, the wrongful act. Croco v. Oregon, 18 Utah 311; 3 Sutherland, Dam. (2d Ed.) 2661, 2662.
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 twenty years prior to April, 1898, the defendant maintained a culvert under its roadbed across a welldefined 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 one hundred twenty-five 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 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...
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