Hannaher v. St. Paul, M. & M. R. Co.

• Decision Date: 07 February 1888
• Citation: 5 Dak. 1,37 N.W. 717
• Court: South Dakota Supreme Court
• Parties: Hannaher et al. v. St. Paul, M. & M. R. Co.

37 N.W. 717

5 Dak. 1

Hannaher et al.

v.St. Paul, M. & M. R. Co.

Supreme Court of the Territory of Dakota.

February 7, 1888.

Appeal from district court, Cass county; William B. McConnell, Judge.

Action by Ellen E. Hannaher and Martha J. Hannaher against the St. Paul, Minneapolis & Manitoba Railway Company for damages for overflowing plaintiffs' land and destroying their crops. Judgment for plaintiffs, and defendant appeals.J. Kling, M. D. Grover and Wilson, Ball & Wallin, for appellant. Chas. A. Pollock and Stone & Newman, for respondents.

TRIPP, C. J.

This is an action brought by the plaintiffs to recover damages for injury to their crops during the years 1881-82, by overflow of surface water, alleged to have been caused by the negligent construction of the road-bed, ditches, and culverts of the defendant railway company. The complaint substantially alleges that-(1) Defendant's railroad runs in a southeasterly and north-westerly direction upon a road-bed and embankment raised about two feet above the surrounding country. (2) That under its road-bed it constructed a culvert near to plaintiffs' land, which culvert connected with the ditch which was at the same time constructed by the defendant, and which extended along the west side of the embankment, and parallel with it, for several miles. (3) That prior to such construction the water falling or coming upon the land lying west, south-west, and north-west of plaintiffs' land for several miles ran its natural course towards the north-east, and away from plaintiffs' land, into coulees and depressions, and thence into the Red river, without coming on or injuring plaintiffs' land. (4) That defendant carelessly and negligently constructed said embankment, culvert, and ditch, and thereby caused large quantities of water to become dammed up on the west side of said embankment, and collected in said ditch, and diverted said water from its ordinary course, and caused it to be conducted through said culvert over and upon plaintiffs' land in large and unusual quantities. (5) That defendant also carelessly and negligently constructed a ditch on the east side of, and parallel to, its road-bed for several miles, in a south-easterly direction, and thereby caused large quantities of water from defendant's and other surrounding lands to be conducted and diverted through said ditch upon plaintiffs' land in large and unusual quantities. (6) That by reason of such negligent and improper construction plaintiffs' land was overflowed, and their crops destroyed. The gist of the action is the negligent construction of the embankment, ditches, and culvert described in the complaint. The answer puts in issue the allegations of the complaint, and affirmatively alleges the proper construction of the road-bed, its embankments, ditches, and culverts. The defendant before the trial moved for judgment upon the pleadings, and at the close of the case asked the court to direct a verdict for the defendant, which motion and request were denied, and exceptions duly taken. The defendant also asked certain instructions of the court to the jury, which were refused, to which exceptions were taken, and also numerous exceptions to the charge given to the jury by the court upon its own motion, all of which will be noticed more fully hereafter. Numerous other exceptions were taken at the trial, and were urged in this court, but will not be noticed in this opinion, and are not necessary to be considered in the view we have taken of this case. A careful examination of the pleadings and evidence shows that the railroad ran in a south-easterly and north-westerly direction, intercepting the natural flow of surface water, which ran in a north-easterly direction, diagonally, or nearly at right angles; that the entire surface of the country is one extended plain or level, with no elevations or depressions of more than a few feet or inches; that there were no natural water-courses on or near the premises in controversy, or within reach of said right of way, into which such surface water could be drained; that the depressions, or coulees, through which the surface water reached, and was drained into, the Red River, were lower levels of the prairie, or depressions of the surface, having no defined banks or bed, but were filled and covered with the continuous grass of the prairie, though sometimes such grass was of the coarser and ranker variety than that which grew upon adjacent lands; and such depressions were usually dry, like the other portions of the prairie, except in times of high water or melting snows; that the plaintiff, for a valuable consideration, conveyed to the defendant the right of way, for railway purposes, across the premises alleged to have been overflowed, before the construction of the embankment, ditches, and culvert complained of. While the gist of the action was the negligent construction of the embankment, ditches, and culvert in question, it seems to have been clearly established by the evidence, and to have been practically admitted at the trial, and it was admitted in this court, that the embankments, etc., complained of were properly constructed for railroad purposes. Counsel for respondent in his brief commences by saying: “It is not claimed by respondents that the railroad company did not construct a proper embankment, ditches, and culverts for railroad purposes;” but respondents claimed that the defendant should have so constructed its road that the surfacewater would not have flowed upon the premises in greater quantities, or in a different manner, from what it naturally was wont to flow, and that if by the construction of its embankments, ditches, and culverts, though constructed in the usual and ordinary manner, larger quantities of surface water were permitted to accumulate, and were discharged upon plaintiffs' land in an unusual manner, whereby they sustained injury, the defendant was liable in an action for damages for such injury.

The action was commenced as one of negligence for the carelessly and negligently doing of a lawful act,-the careless and negligent construction of its embankment, ditches, and culverts, which it had a lawful right to construct in a careful and proper manner; it ends in an action of trespass, or the doing of an unlawful act in an unlawful manner. The theory upon which the action was commenced, and the theory upon which it was tried, are antagonistic, and cannot both be maintained upon the same state of facts. The act of constructing the embankment, etc., cannot be wrong and right at the same time. It was, or it was not, negligently constructed; and, if it was not negligently constructed, the plaintiffs' cause of action failed. In the court below the testimony on both sides was to the effect that defendant's railroad was constructed in the usual and customary manner; that the excavations at the sides were the usual ones made to obtain earth to form the embankments, and were usual in size and extent; that the embankment was of the usual height in prairie countries, and the culverts were of the ordinary and usual size and number. John D. White, an engineer of experience, called by the plaintiffs, testified as follows: “ Question. Mr. White, what is the elevation of this road-bed through that country? Answer. It is about two feet. It varies a little either side of that. And the road-bed conforms, in a general way, to the topography of the country. Q. You say you have had some experience in railroad building? A. Yes, sir; I have had a little experience in that kind of work. Part of that was in this country. I located a little line here. Q. Is this railroad constructed in the usual and customary manner of constructing railroads in open prairie countries? A. Yes, sir. Q. Properly constructed, is it not? A. It is not constructed exactly as I would construct a railroad if I was going to do it, but it is constructed as is generally done in the country. The road-bed is the same as railroad beds are generally made,-by excavating at the side of the track to get earth enough to make the road-bed. Q. Is not that the best method of doing? A. That is the only method of doing that I know of, in regard to getting an embankment. Q. And these culverts are such culverts as are usually and customarily put into railroads? A. Yes, sir. Q. To allow an escape of water? A. Well, I think it is generally not to look for so great an amount of water,-just to provide communication between different ditches, if there is a drainage level between one side and the other, and let all the water go in that direction. The culverts are the ordinary culverts that are put into all the railroads. They are properly constructed. Q. And there is the usual number of culverts in this distance that there would ordinarily be in a low, flat country, are there not? A. Yes, sir, there are as many as are customary. Q. And they are made to conform to the topography of the country, are they not; they are put in where the natural flow of water would be to the lowest points? A. They are; yes, sir; in regard to these ditches. Q. Well, these ditches, as you say,-you do not call them ditches; they are excavations? A. They are excavations. Q. And it is usual and customary to excavate, and not to ditch? A. Yes, sir. *** Q. These culverts are how far apart, Mr. White? A. I think about three-quarters of a mile; am not certain. Q. You say they are put along here in that stretch of road as frequently as it is customary to put in culverts over flat country? A. Yes, sir; they are three-quarters of a mile on an average. Q. Of course, if there was any embankment there at all, the tendency would be to obstruct the natural flow of water, would it not? A. If there is a flow in that direction. Q.Well, is it not customary, across a country like that, to construct a road upon piling, or all culverts, in order to prevent diverting the natural flow of the water? A. No, sir; not in that kind of a country at...