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

• Decision Date: 13 December 1888
• Citation: 25 Neb. 138,40 N.W. 948
• Parties: FREMONT, E. & M V. R. CO. v. MARLEY.
• Court: Nebraska Supreme Court

25 Neb. 138

40 N.W. 948

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

v.MARLEY.

Supreme Court of Nebraska.

December 13, 1888.

Syllabus by the Court.

In an action against a railway company for loss and injury to property, after the issues had been made up and the case ready for trial, it was discovered that the files were mislaid. The court thereupon permitted the filing of a substituted petition instanter, and required the railway company to answer, and go to trial at once. Held that, as the substituted petition presented a number of new issues, a reasonable time should have been given the defendant to answer and prepare for trial.

Where a land-owner sustains injury to his crops, land, etc., caused by the negligence of a railroad company, a witness who possesses the requisite knowledge, may testify to the value of the crops, property, etc., and to facts and circumstances calculated to inform the jury on those questions, but will not be permitted to state the amount of damages sustained by a party for loss of crops or other injuries; that being a matter for the jury to determine.

The question of permitting the introduction of records to prove the title of the plaintiff in an action for injury to crops and to the land itself, instead of requiring the production of the original evidence of title, rests to a great extent in the discretion of the trial court, and, unless there is a clear abuse of that discretion, error will not lie.

Where property is destroyed by the negligence of another, the owner will be entitled to interest on the value of such property from the time of its destruction.

Where growing crops are destroyed through the negligence of another, the owner may recover from the party at fault the value of such crops.

A party has no right to collect surface water in a ditch or drain, and permit it to flow onto the land of another without the latter's consent; and, if he do so, he will be liable for the damages sustained.

Error to district court, Holt county; NORRIS, Judge.John B. Hawley, for plaintiff in error.

G. M. Cleveland, M. F. Harrington, and Allen & Robinson, for defendant in error.

MAXWELL, J.

1. This action was brought by the defendant in error against the plaintiff in error, in the district court of Holt county, to recover damages to crops, etc. A petition was filed, and also an amended petition, and just before going to trial it was discovered that the files were mislaid; and after a prolonged search, as they could not be found, the attorneys for the plaintiff below obtained leave to substitute a petition, which they did, as follows: “That defendant is now, and was at the date of the various transactions hereinafter mentioned, a railroad corporation, organized and doing business under the laws of the state of Nebraska, in Holt county, Neb.; is owning and operating therein a line of railway in the corporate name above stated. That this plaintiff is, and since the year 1873 has been, the owner, and, as such, rightfully possessed of the south half of the north-east quarter, and the east half of the north-west quarter, of section 29, township 28, range 10, in Holt county, Neb. That in the year 1881 the said defendant graded and constructed on its right of way through Holt county, Neb., a railroad track running from the south-east to the north-west, and within about thirty rods of the said real estate of the plaintiff, over which it now and ever since then has maintained and operated a railroad. That at the time of constructing the road-bed and grading its said track, the defendant cut ditches on its right of way on either side of its track, in the close vicinity of the plaintiff's said land, to drain its track and right of way of surface water, and to discharge said surface water accumulating from time to time along its said track and right of way. That to the west and south-west of the plaintiff's said land the surface of a large tract of land along the defendant's said track and right of way is such as to cause all of the surface water accumulating thereon to flow into the said ditches dug and maintained on either side of the said defendant's railway track, and especially into the ditch on the south side thereof, which water, after reaching said ditches, flows therein in a south-easterly direction, and towards the said land of the plaintiff. That by reason of the embankment of defendant's road-bed, and the insufficiency of the said ditches along the defendant's right of way, a large quantity of surface water is directed from its natural course, and carried down to a point opposite plaintiff's said land, where it is discharged in large volumes upon the plaintiff's said land. The plaintiff alleges that the embankment of defendant's said road-bed was so negligently and insufficiently made and maintained by defendant, the culverts and ditches so negligently and insufficiently constructed and maintained by defendant, that said ditches do not, and never have, properly carried off and discharged the surface water accumulating therein, but, on the contrary, the said water has been poured out of said ditches, and across and over the land of the plaintiff. That on or about the 20th day of April, 1882, by reason of the careless, negligent, and insufficient manner in which the defendant's said road-bed, ditches, and culverts were constructed and maintained, and without any fault or neglect of the plaintiff, a large quantity of surface water has been negligently suffered to accumulate by defendant in said ditches, and on the defendant's said right of way and road-bed, and was discharged upon the said land of the plaintiff, drowning five head of cattle of the plaintiff, of the value of $100, and fifteen hogs of the plaintiff, of the value of $75. That said sums are now due and owing to the plaintiff from the defendant, and are wholly unpaid. That on or about the 20th day of May, 1882, by reason of the careless and negligent and insufficient manner in which the defendant's said road-bed, ditches, and culverts were constructed and maintained, and without any fault or neglect of the plaintiff, a large quantity of surface water was negligently suffered to accumulate by defendant in said ditches, and on defendant's said right of way and road-bed, and was discharged upon the said lands of the plaintiff; destroying eight acres of standing and growing oats, of the value of $40, which sum is now due and unpaid to him. That some time in the month of June, 1882,--the exact time the plaintiff is unable to state,-- by reason of the careless, negligent, and insufficient manner in which said road-bed, culverts, and ditches of defendant were constructed and maintained, and without any fault or neglect of the plaintiff, a large quantity of surface water was negligently suffered to accumulate by said defendant in said ditches, and on defendant's said right of way and road-bed, and was discharged on said lands of the plaintiff, destroying seven acres of standing and growing...