Fremont, E. & M. V. R. Co. v. Harlin

• Decision Date: 16 February 1897
• Citation: 50 Neb. 698,70 N.W. 263
• Court: Nebraska Supreme Court
• Parties: FREMONT, E. & M. V. R. CO. v. HARLIN.

50 Neb. 698

70 N.W. 263

FREMONT, E. & M. V. R. CO.

v.HARLIN.

Supreme Court of Nebraska.

Feb. 16, 1897.

Syllabus by the Court.

1. A plaintiff alleged, in his petition, that the defendant, a railroad company, carelessly and negligently constructed its ditches along its track through the lands of plaintiff in such a manner as to cause the surface waters to collect in said ditches and be precipitated on plaintiff's land, whereby certain of his crops were destroyed, certain of his trees growing on said land were destroyed, and his land was depreciated in value by the deposit thereon of clay and sand. Held (1) that, because of the general allegation of the railroad company's negligence in constructing its ditches, the petition was open to a motion to make more definite and certain; (2) but that the general allegation of negligence was good as against a demurrer, and therefore the petition stated a cause of action.

2. A landowner conveyed to a railroad company a right of way across his land. The conveyance contained the following release: “For the consideration aforesaid, do hereby release and discharge the said party of the second part, its successors and assigns, from all costs and damages which the said party of the first part has now sustained or shall at any time hereafter sustain in any way by reason of the construction, building or use of the said railroad.” The railroad company afterwards built its road on the right of way purchased, and in so doing constructed thereon certain ditches for the purpose of draining its roadbed. Subsequently the landowner conveyed his land to the defendant in error, and he sued the railroad company for damages, alleging that said ditches were negligently constructed, and by reason thereof they conducted the surface waters collected therein on his land, destroyed certain of his crops and certain of his trees, and injured his land by depositing sand and clay thereon. The railroad company pleaded the release in the right of way deed in bar of the action. Held (1) that, if the release would estop the original owner, had he retained the land and brought this action, it would likewise estop the defendant in error; (2) that the true construction of the release is that by it the landowner acknowledged satisfaction for the value of all the land appropriated by the railroad company for its right of way, and released and discharged it from all damages which the remainder of his land had sustained or would sustain by reason of the nonnegligent construction, maintenance, and operation of its road across the lands for all time; (3) that the release should be given the same effect as if it were a judgment rendered in a condemnation proceeding instituted by the railroad company for right of way over the land; (4) that in such a judgment, and therefore in the release, were not included damages for injuries that might afterwards arise as the result of a negligent construction, maintenance, or operation of the road; (5) that it was not within the contemplation of the parties to the right of way deed, at the time it was executed, that the railroad company would negligently construct, maintain or operate its road; (6) that, had the right of way been obtained by condemnation, the landowner in that proceeding could not have been awarded damages upon the theory that he might in the future sustain injury by reason of the railroad company's negligently constructing, maintaining, or operating its road; (7) that the defendant in error's cause of action arose when the injury sued for occurred, and not when the ditches were completed; (8) whether the ditches were properly and skillfully constructed for railroad purposes was not the material issue in the case; (9) and, if so constructed, that, of itself, did not afford the railroad company a complete defense to the action, as the material issue in the case was whether the railroad company had so constructed its ditches as to unnecessarily and negligently injure the defendant in error; (10) that the measure of the defendant in error's damages was the value of his crops destroyed, the value of his trees destroyed, and the difference in value of his land immediately before and after the depositing of the sand and clay thereon.

3. In addition to the general denial that the defendant in error had sustained any damages, and that it had been guilty of any negligence in constructing its ditches, the railroad company interposed the defense that the damages claimed resulted from a rain storm so unprecedented as to amount to the act of God. The district court instructed the jury that, if the railroad company had failed to establish, by a preponderance of evidence, the defense interposed, they should find for the defendant in error. Held, that the giving of the instruction was reversible error.

Error to district court, Saunders county; Bates, Judge.

Action by Charles Harlin against the Fremont, Elkhorn & Missouri Valley Railroad Company. Judgment for plaintiff, and defendant brings error. Reversed.

Irvine, C., dissenting as to measure of damages.

John B. Hawley, Wm. B. Sterling, and J. E. Frick, for plaintiff in error.

C. Hollenbeck, for defendant in error.

RAGAN, C.

Charles Harlin brought this suit to the district court of Saunders county against the Fremont, Elkhorn & Missouri Valley Railroad Company (hereinafter called the “Railroad Company”) to recover damages which he alleged he had sustained by reason of the destruction of certain of his crops, certain trees growing upon his land, and by reason of the deposit on his land of quantities of débris, all caused by the negligence of said railroad company in constructing certain ditches on its right of way in such a manner as to cause the waste and surface waters to be collected in said ditches and precipitated on his land. Harlin had a verdict and judgment, and the railroad company prosecutes here a petition in error.

1. The first point argued in the brief is that the petition does not state facts sufficient to constitute a cause of action. The petition, so far as material here, is as follows: “That the defendant * * * carelessly and negligently constructed its ditches along * * * said railroad track * * * through the lands of plaintiff * * * in such a manner as to cause the waste and surface waters to collect along and adjoining the said railroad track, and to lead and precipitate the same directly on and over the adjoining lands of plaintiff; that during the years 1889 and 1890 the water so precipitated and turned from its natural course over upon said lands of plaintiff totally destroyed large portions of crops of corn and potatoes then growing upon said land, and the property of plaintiff; and during the year 1891, by reason of the said careless and negligent construction of said ditches, large quantities of clay and sand were carried by the water from said ditches over and upon the lands of said plaintiff, totally destroying the crops of potatoes and corn then standing, and the property of said plaintiff, and by reason of the depositing of said sand and clay on said land a large number of trees standing and growing thereon were totally destroyed, and a large quantity of said land was greatly and permanently damaged, so as to be unfit for the production of crops.” The averments of this petition do not disclose the particular acts or omissions of the railroad company in constructing its ditches which the pleader alleges were negligent. It is not averred that the railroad company was guilty of negligence because it constructed ditches, or in constructing them where it did, nor that they were too narrow or too shallow. The allegation of negligence is a general one, and, had a motion been made to require the pleader to specifically state in what the negligence of the railway company consisted, it would, doubtless, have been sustained. But a general allegation of negligence is good against a demurrer, and under such an allegation evidence of any fact which contributed to the injury sued for is competent and relevant. Railway Co. v. Wright (Neb.) 68 N. W. 618. We think, therefore, that the petition states a cause of action.

2. At the time the railroad company constructed its road over the lands of plaintiff, they were owned by a man named Shannon, the plaintiff's grantor. Before the construction of the road over the lands, Shannon, for a valuable consideration, conveyed to the railroad company a right of way over his lands. In this conveyance occurs the following: “For the consideration aforesaid, do hereby release and discharge the said party of the second part, the railroad company, its successors and assigns, from all costs and damages which the said party of the first part has now sustained or shall at any time hereafter sustain in any way by reason of the construction, building or use of the said railroad.” On the trial of this case the railroad company offered in evidence, under proper pleadings, this right of way deed. It was excluded, and this action of the district court it is now insisted was erroneous. The contention is that this was a release to the railroad company by Shannon of all damages which he had or might afterwards sustain by reason of the construction and operation of this road over his lands, that the release would bar this action were it brought by Shannon, and that the release is likewise binding upon his grantee. We agree with counsel for the railroad company that, if this release would bar Shannon from maintaining this action, it likewise precludes his grantee, as the latter took the land burdened with the railroad company's easement, and he cannot maintain any action against the railroad company for damages growing out of the construction, operation, or maintenance of this road that his grantor could not maintain had he continued the owner of the land. The question, therefore, is whether the release in the right of way deed would bar this action had it been brought by...