Harris v. Lincoln & N. W. R. Co.

• Decision Date: 28 September 1912
• Docket Number: No. 16,646.,16,646.
• Citation: 91 Neb. 755,137 N.W. 865
• Parties: HARRIS ET AL. v. LINCOLN & N. W. R. CO. ET AL.
• Court: Nebraska Supreme Court

91 Neb. 755

137 N.W. 865

HARRIS ET AL.

v.LINCOLN & N. W. R. CO. ET AL.

No. 16,646.

Supreme Court of Nebraska.

Sept. 28, 1912.

Syllabus by the Court.

The measure of damages for permanent injury to land, occasioned by the necessary and proper construction of a railroad, no part of the land having been taken, is the difference in the market value of the property immediately before and immediately after the construction of the improvement, unaffected by any increase or depreciation of values generally in the same vicinity.

In such case the reception of evidence of the fair and reasonable value of the land immediately before and immediately after the overflow is reversible error.

In an action for damages to land and growing crops by flood waters of a stream, subject to overflow from natural causes, and which it is alleged were thrown upon the plaintiffs' land by the negligent and improper construction of a railroad near by and adjacent thereto, the burden of proof is on the plaintiffs to show that the construction complained of either caused such overflow, or increasedthe same, or in some manner contributed thereto, together with the nature and extent of the increased overflow, if any, and the amount of damages caused thereby.

Evidence examined, and found insufficient to sustain the verdict.

Appeal from District Court, Lancaster County; Stewart, Judge.

Action by Ebenezer D. Harris and others against the Lincoln & Northwestern Railroad Company and others. Judgment for plaintiffs, and defendants appeal. Reversed and remanded.

Letton, J., dissenting in part.

James E. Kelby, Halleck F. Rose, and Byron Clark, all of Omaha, for appellants.

A. G. Wolfenbarger and Geo. W. Berge, both of Lincoln, for appellees.

BARNES, J.

Action for damages alleged to have been sustained by plaintiffs by reason of the construction of that part of defendants' railroad, near the city of Lincoln, known as the Denton cut-off, which, it is alleged, caused the waters of Middle creek to flow over, across, and upon the plaintiffs' land, destroying the crops growing thereon and permanently injuring the land itself.

It was alleged in the plaintiffs' petition that the defendants, in constructing their line of railroad, established and made dikes and dams, and negligently, carelessly, and recklessly filled and dammed up the natural water course and channel of Middle creek, entirely changing the natural bed and channel of that stream, causing its waters to be turned aside from the bed channel and natural course in which they had run from time immemorial, and carelessly, recklessly, and unnecessarily cut and caused to be constructed a new and entirely different outlet and channel to carry the waters of the stream, beginning with the point of diversion at about one-half a mile above and northwest of the land owned and farmed by plaintiffs, thereby causing their land to be subject to overflow.

It was further alleged in the petition that: “Before the building, establishing, and construction of the grades, embankments, trackage, dikes and dams, and the diversion of the waters of said stream, the said land of the plaintiffs was worth, at a fair and reasonable valuation, the sum of $200 per acre; but on account of said negligent, careless, reckless, and unnecessary acts and doings of the said defendants, as hereinbefore described, the said land is now rendered subject to continued and permanent danger of overflow, and the salable, reasonable, and true market value of the same has been reduced more than $100 per acre, and said injury and damage to said land is permanent. The plaintiffs suffered damage in the premises by reason of said injury to and depreciation of the value of said lands in the sum of $6,000, and all on account of the negligence, carelessness, and unnecessary acts and doings of said defendants.” That on or about the 10th day of June, 1907, the watershed drained by Middle creek, including the vicinity where plaintiffs' land is situated, was visited by a heavy rain, and the volume of water coming down the stream was obstructed, caused to back up, and could not find its natural and proper outlet; and because of the dams, high grades, embankments, and other obstructions Middle creek was caused to overflow and flood the land and farm of the plaintiffs, washing and tearing out their crops and covering the land with loose earth, soil, washings, silt, sand, gravel, wreckage and débris destroying their growing crops to their damage in the sum of $4,000, and permanently injuring and damaging the land itself in the further sum of $5,100, for all of which they prayed judgment.

Defendants by their answer denied the allegations of the petition both generally and specifically, and alleged that the natural bed and channel of Middle creek passes through plaintiffs' land, and then was and now is, unobstructed; that the lands comprising the entire valley of the said stream, from its source to its mouth, including the land described in plaintiffs' petition, have from wholly natural causes, from time immemorial, and long anterior to any railroad or other improvements therein, been subject to overflow; that any overflow of water thereon at the time stated in the petition was due wholly to natural causes, and to excessive and extraordinary rainfalls in the area of the land drained by that stream beyond any that had been previously known therein, and which so swelled the stream that it overflowed its banks, and the overflow was caused by the act of God; that the defendants, and neither of them, were responsible or answerable therefor. It was also alleged that the petition stated two causes of action which were improperly joined, and the defendants prayed that the plaintiffs be required, before trial, to elect upon which of said causes they would rely.

The reply was a general denial. The court refused to require the plaintiffs to elect. The cause was tried to a jury. The trial resulted in a verdict for the plaintiffs for $1,200, permanent injury to their land, exclusive of the damages sustained to their growing crops, and damages to crops to the amount of $1,839. A motion for a new trial was overruled, judgment was rendered on the verdict for the sum of $3,039, and the defendants have brought the case here by appeal.

One of the grounds assigned for a reversal is that the evidence is insufficient to sustain the judgment. It must be conceded that the burden of proof was on the plaintiffs to show by a preponderance of the evidence that the new construction of which they complain, either caused the flood of June 10, 1907, to overflow their premises, or in some manner increased the natural overflow, together with the extent of such increase and the amount of their damages caused thereby.

It was disclosed by the plaintiffs' evidence that they were not the fee-title owners of the land described in their petition, but were in possession and were occupying it as lessees from the state, which was the owner of the fee; that they were paying therefor a rental of $19.60 per year, papable semiannually; that they procured their leasehold interest in the month of September, 1906, and took possession of the land some time thereafter; that by the spring of 1907 they had completed their improvements in the way of a dwelling house, stables, and outhouses, which were located upon or near the southeast corner of the 40-acre tract, at a place which was above the flood waters; that when they took possession of the land it was an ordinary pasture, situated in the lowest part of the valley of Middle creek, with that stream running through it in a winding course, cutting it into three parts; that they broke a part of the land, harrowed it, disced it, and planted it to different kinds of marketable garden vegetables; that their crop was in fair condition when the flood in question occurred. It appears that on the 10th day of June there was an unusually heavy and excessive rainfall over all of the watershed drained by Middle creek, which caused the stream to...