Jungblum v. Minneapolis, N. U. & S. W. R. Co.

• Decision Date: 19 November 1897
• Parties: JUNGBLUM v MINNEAPOLIS, N. U. & S. W. R. CO.
• Court: Minnesota Supreme Court

70 Minn. 153

72 N.W. 971

JUNGBLUMvMINNEAPOLIS, N. U. & S. W. R. CO.

Supreme Court of Minnesota.

Nov. 19, 1897.

(Syllabus by the Court.)

1. Held, that the evidence is sufficient to sustain a finding by the jury to the effect that the defendant unnecessarily and unreasonably obstructed a natural channel wherein surface water was accustomed to flow, and thereby flooded the plaintiff's land.

2. The defendant acquired its right of way over plaintiff's land by deed which in terms released the defendant from all damages by reason of the location, grade, construction, maintenance, and operation of a railway over and upon the premises conveyed. Held, that the deed only released the defendant from all damages resulting from a reasonable and nonnegligent construction of a railway over and upon the premises conveyed.

3. The plaintiff's land was and is flooded by the negligent construction of the defendant's roadbed across a natural channel for surface water, without a culvert therein to let such water pass off in its accustomed course. Held, that the injury is not permanent in its nature, and the measure of damages is the diminution in the rental value of this land by reason of the injury, computed to the commencement of the action.

Appeal from district court, Nicollet county, B. F. Webber, Judge.

Action by John Jungblum against the Minneapolis, New Ulm & Southwestern Railroad Company. Verdict for plaintiff. From an order denying a new trial, defendant appeals. Modified.

Albert E. Clarke and W. F. Booth, for appellant.

Albert L. Young, for respondent.

START, C. J.

This action was brought to recover damages for the overflowing of the plaintiff's land by reason of the improper construction of the defendant's roadbed. Verdict for the plaintiff for $330, and the defendant appealed from an order denying its motion for a new trial. The assignments of error present three general questions for our decision: First. Is the evidence sufficient to establish any liability on the part of the defendant for obstructing a natural water course, or for unreasonably and unnecessarily obstructing and accumulating surface water, and thereby casting it upon the plaintiff's land? Second. Does the deed introduced in evidence, whereby the plaintiff conveyed to the defendant a right of way over his land, operate as a release of the defendant from liability on account of the acts complained of? Third. Did the trial court err in instructing the jury as to the measure of damages? We answer the first and third questions in the affirmative, and the second one in the negative.

1. The defendant, in the year 1896, constructed its railroad diagonally across section 23, township 111, range 30, of which the plaintiff owned the N. 1/2 of the S. W. 1/4, Gullick Johnson the S. 1/2 of the 1/4, and Johanna Swanson the S. E. 1/4. The plaintiff claims that, before the defendant constructed its roadbed, there existed a well-defined depression and water course sloping from the northwest to the southeast diagonally across section 23, into and through which the surface water coming upon his and adjoining land was accustomed to flow and find an outlet; that the defendant, in constructing its roadbed, negligently made a solid embankment across this water course, whereby the natural flow of the surface water was obstructed and accumulated in large quantities in the depression near its road; that the defendant, for the purpose of freeing its roadbed from the water so accumulated, drained it by an artificial ditch 650 feet long, and parallel to its roadbed, into a slough situated in part upon the plaintiff's land, with the result that his land was overflowed and injured. The defendant contends that the evidence is not sufficient to sustain a finding of the existence of the alleged water course. It is practically conceded by both parties that if the defendant had put in a culvert across the depression, as the defendant calls it, the surface water would not have been thrown upon the plaintiff's land, and that it is entirely practicable to put in such a culvert, except that the defendant claims that to do so would render it liable to Swanson for discharging the surface water in a body upon her land. There was evidence given on the trial on behalf of the plaintiff tending to show that this depression was the usual and natural course or channel along which the surface water was accustomed to flow, before the roadbed was constructed, for a mile or two east of the roadbed, and that the channel bears marks of water having flowed through it. Whether this depression is a natural water course, within the strict definition of the term, we need not determine; for the evidence justifies a finding that it was the usual and natural channel for surface water, and offered a reasonable way for the defendant by the construction of a culvert to dispose of the surface water without injury to any landowner. The trial court submitted this question to the jury in these words: “If the jury finds from the evidence that the defendant might reasonably have constructed a culvert through its roadbed, and thereby have conveyed the water in question through its natural and usual channel from its right of way, without injury to any other land owner, and that it neglected to do so, but that it unnecessarily or unreasonably drained the water upon the plaintiff's land, to the plaintiff's injury, then the plaintiff is entitled to recover.” This was a concise and accurate statement of the law as declared by this court in the case of Sheehan v. Flynn, 59 Minn. 436, 61 N. W. 462. The jury, under this instruction, by their verdict, necessarily found that the defendant unreasonably and unnecessarily drained the surface water upon the plaintiff's land. The evidence was sufficient to sustain this finding, and establishes the defendant's liability.

2. The defendant acquired its right...