Heath v. Minneapolis, St. P. & S. S. M. R. Co.

• Decision Date: 17 July 1914
• Docket Number: No. 18691[217].,18691[217].
• Citation: 126 Minn. 470,148 N.W. 311
• Court: Minnesota Supreme Court
• Parties: HEATH v. MINNEAPOLIS, ST. P. & S. S. M. R. CO. et al.

126 Minn. 470

148 N.W. 311

HEATH

v.MINNEAPOLIS, ST. P. & S. S. M. R. CO. et al.

No. 18691[217].

Supreme Court of Minnesota.

July 17, 1914.

Appeal from District Court, Washington County; P. H. Stolberg, Judge.

Action by Albert C. Heath against the Minneapolis, St. Paul & Sault Ste. Marie Railroad Company and others. Plaintiff prevails. From denial of alternative motion for judgment or new trial, defendants appeal. Affirmed on condition.

Syllabus by the Court

The defendants so constructed and maintained an embankment on their right of way that at every heavy rainfall destructive quantities of sand and material therefrom were cast upon the adjoining land of plaintiff. This constituted a continuing trespass and nuisance, entitling plaintiff to an injunction and damages.

It clearly appeared from the evidence that the expense of removing the sand was much less than the diminution in the market value of the land, if the sand and existing conditions were allowed to remain. Such being the case, the lesser amount was the proper sum to award as damages.

Certain findings, in so far as material, are sustained by the evidence, except as to the extent of $200 included in the damages allowed. A. H. Bright and Kenneth Taylor, both of Minneapolis, and Manwaring & Sullivan, of Stillwater, for appellants.

Butler & Mitchell, of St. Paul, for respondent.

HOLT, J.

This is an action to enjoin defendants from casting sand upon plaintiff's land, and for damages for the injury already inflicted because of a deposit of sand thereon. Plaintiff prevailed, and defendants appeal from the order denying their alternative motion for a judgment or a new trial.

The defendants' right of way, where it crosses St. Croix river, runs east and west and occupies a strip off of the northerly boundary of government lot 3 in section 1 of township 30, range 20 west. In the spring of 1911, after defendants had acquired the right of way and constructed a high embankment thereon for their roadbed, plaintiff bought the remainder of the lot from the same person who had conveyed the right of way to defendants. Plaintiff's land is bounded on the east by St. Croix river, towards which it slopes. A ravine or depression exists in the northwest corner, which runs northeasterly until it strikes the right of way, about where an abandoned right of way crosses the present, and thence it turns southeasterly and spreads out into a valley. In this valley are two spring-fed rivulets, which unite, and, passing along, discharge into a bay of the river in the southeasterly part of the lot. The land is adapted for a summer residence, because of its attractive location, and also on account of the springs, available for keeping and propagating brook trout. Plaintiff bought it for these purposes, erected a dwelling house, and built concrete dams in the rivulets and springs wherein to keep the trout. Because of the nature of the ground defendants were compelled to make a cut some 4.000 feet in length immediately west of plaintiff's land. This cut is, at places, over 150 feet in width and some 40 feet in depth, sloping east. Over lot 3 the defendants' track is, for the greater part, laid upon immense fills, and the balance is upon trestle. The result was that a large quantity of water from the drainage basin caused by the cut flowed down upon plaintiff's land, and, in discharging through a culvert placed in the ravine where it crossed the abandoned right of way, it struck the toe of the large fill, carrying away freat quantities of sand down into the springs and rivulets mentioned, almost entirely filling the trout dams, and burying the trout. As the sand was thus torn loose from the fill, more was dumped in. Experts testified that from 2,000 to 2,200 cubic yards of sand were deposited upon plaintiff's premises, and that the value of removing the same was $1.50 per cubic yard. One question was submitted to a jury for determination, namely: ‘In what amount has the property of the plaintiff described in the complaint been damaged by the deposit and casting thereon of sand and loose material from the embankment of the defendants?’ And the answer was: ‘In the sum of $3,500.’ The court embodied the verdict in the findings, granted the injunction asked, and awarded damages in the sum named.

[1] The first proposition which naturally presents itself is whether the plaintiff was entitled to an injunction. It is contended by appellants that its embankment and fill was constructed when plaintiff bought; that the right of action because of faulty construction had accrued and vested in plaintiff's grantor, and did not pass with the deed; that the embankment or fill was a permanent injury, and the deposit of sand afterwards was a mere natural result of surface water washing against and flowing over the fill; and that this would take place was perfectly obvious when plaintiff bought, and naturally the purchase price was reduced accordingly. In short, it is claimed that the construction of the roadbed was a permanent injury to this lot 3, for which damages accrued to the then owner, plaintiff's grantor. We are cited to cases like Karst v. St. Paul, Stillwater & Taylor's Falls Ry. Co., 22 Minn. 118;Ziebarth v. Nye, 42 Minn. 541, 44 N. W. 1027;Evans v. Northern Pa. Ry. Co., 117 Minn. 4, 134 N. W. 294;Milwaukee & Northern Ry. Co. v. Strange, 63 Wis. 178, 23 N. W. 432;Toledo, etc., Ry. Co. v. Morgan, 72 Ill. 155;Arterburn v. Beard, 86 Neb. 733, 126 N. W. 379;Kindred v. Union Pac. R. Co., 225 U. S. 582, 32 Sup. Ct. 780, 56 L. Ed. 1216;Louisville & Nashville Ry. Co. v. Lambert, 110 S. W. 305,33 Ky. Law Rep. 199, and others. In some of these cases the injury grew out of the erection of a permanent structure upon land other than complainant's but which depreciated the value or use of his; and in others, improvements of a permanent character had been erected by the defendant on his own property, which diverted surface waters, or a water course, before the complainant acquired the property claimed to be injuriously affected; and again in others, where land was conveyed with a railway upon it, so that it was held that the grantee took subject to an easement. Of course, if damages have been recovered for present and prospective injuries to land, no injunction will issue to abate that which is included in the recovery; and it also follows that, if the construction of the railroad embankment was a permanent injury to lot 3 when owned by plaintiff's grantor, he is the one entitled to damages, and plaintiff can have neither injunction nor damages.

But we think defendants' position is not sound. They owned the right of way, and had a perfect right to make cuts and fills, so long as these were...