Fremont, Elkhorn & Missouri Valley Railroad Company v. Gayton

• Decision Date: 21 January 1903
• Docket Number: 12,463
• Citation: 93 N.W. 163,67 Neb. 263
• Parties: FREMONT, ELKHORN & MISSOURI VALLEY RAILROAD COMPANY v. GEORGE GAYTON ET AL. [*]
• Court: Nebraska Supreme Court

93 N.W. 163

67 Neb. 263

FREMONT, ELKHORN & MISSOURI VALLEY RAILROAD COMPANY v. GEORGE GAYTON ET AL. ^[*]

No. 12,463

Supreme Court of Nebraska

January 21, 1903

ERROR from the district court for Dodge county. Action in the nature of case, to recover for diverting of water by the landowners onto the premises of another. Tried below before GRIMISON, J. Judgment for plaintiff. Reversed.

REVERSED AND REMANDED.

Benjamin T. White, James B. Sheean, Clark C. McNish and Andrew R Oleson, for plaintiff in error.

Frederick W. Button, contra.

POUND C. BARNES and OLDHAM, CC. concur.

OPINION

POUND, C.

The Sioux City & Pacific Railroad Company and the Union Pacific Railway Company, became the owners of the land involved in this controversy in 1873, through a grant from the general government. The Sioux City & Pacific Company constructed its road over the land, and in so doing built an embankment, dug certain ditches and borrow-pits, and put in bridges and culverts. After constructing its road, it conveyed the land to the Union Pacific Company, reserving a right of way 200 feet wide across that portion of the tract occupied by its road. Many years afterwards the Union Pacific Company conveyed the land to Solomon Gayton, lessor of the plaintiff subject to said right of way. It is claimed that the Fremont, Elkhorn & Missouri Valley Railroad Company is operating the road. In the summer of 1898, George Gayton, the plaintiff, as tenant of said Solomon Gayton, was cultivating a portion of the tract, and had planted a crop of corn thereon. This action was brought to recover damages for injury to the corn by discharging surface-water upon the land from and through the ditches and borrow-pits in consequence of the manner in which the bridges and embankment had been built and maintained. The plaintiff's claim is that the bridges, embankment and road-bed were so negligently constructed and the ditches so negligently maintained that quantities of surface-water were collected from the surrounding land and discharged upon his field in a body. The defendants pleaded, among other things, the facts above set forth as to the original ownership of the land, and also that the embankment, bridges, ditches and borrow-pits were, in 1898, in the same condition in which they were originally constructed, and that there had been no change from that time until the time of the injury. At the trial, an instruction was requested to the effect that if, at the time the road was built and the embankment, bridges, ditches and borrow-pits constructed, the Sioux City & Pacific Company was the owner of the whole tract, and the borrow-pits, bridges and embankments were in the same condition in 1898, at the time of the destruction of the plaintiff's crops, as when they were built and constructed, and as they were at the time the land was conveyed to said Solomon Gayton, the plaintiff could not recover. This instruction was refused and its refusal, among other things, is assigned as error.

We think the instruction should have been given. The evidence that the Sioux City & Pacific Company originally owned the whole tract and that plaintiff's lessor obtained title through mesne conveyances from that company, after the road was built, is undisputed. The defendants introduced evidence tending to show that the only change which had taken place from the time the road was built until 1898, was that some dirt had been dug out of the borrow-pits and used upon the grade. One witness, however, testified that the dirt had washed down from the track and was merely excavated and thrown back. It is true one of the plaintiff's witnesses states that a change at one of the bridges was made "in the winter of 1897 or 1898." Counsel for defendants in their brief construe this as referring to changes admittedly made after the injury complained of. Counsel for the plaintiff insists that it refers to a change before the injury. As this testimony stands it is ambiguous and would not require us to hold that the evidence conclusively shows a material alteration, in the face of the positive evidence adduced by the defendants. At most there would be a question for the jury whether a change had taken place prior to the injury, and whether such change contributed to or caused the damage and amounted to negligence on the part of the railroad company. Where an owner of land, by any artificial arrangements, effects an advantage for one portion as against another, upon severance of the ownership the grantees of the two portions take them respectively charged with the easement and entitled to the benefit openly and visibly attaching at the time of the severance. Lampman v. Milks, 21 N.Y. 505; Janes v. Jenkins, 34 Md. 1, 6 Am. Rep. 300; Cihak v. Klekr, 117 Ill. 643, 7 N.E. 111.

In 2 Washburn, Real Property [5th ed. ^[*]], *29, it is said: "Though, as already remarked, a man can not have an easement in his own land, and ordinarily the union of title and possession of two estates in one owner extinguishes any prior existing easement in the one for the benefit of the other, there are cases where two estates have been so used in relation to each other, that, if the owner parts with one of them, he has been held to impliedly grant or reserve an easement in the one in favor of the other." The case at bar appears to come within this rule.

In Lampman v. Milks, supra, the owner of land across which there was a flowing stream diverted the stream so as to relieve a portion of the land...