Jungblum v. Minneapolis, New Ulm & Southwestern Railroad Company

Decision Date19 November 1897
Docket Number10,687--(108)
CourtMinnesota Supreme Court

Appeal by defendant from an order of the district court for Nicollet county, Webber, J., denying a motion for a new trial after a verdict of $ 300 for plaintiff. Modified.

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

The common-law rule as to surface water prevails in this state. The owner of the lower land may, with all due care not to injure his neighbor in the use and improvement of his own land, obstruct the natural flow of water and turn it back upon the land of others without incurring liability. Rowe v. St. Paul, 41 Minn. 384; The Jordan Case, 42 Minn 172; O'Brien v. City, 25 Minn. 331; Brown v Winona, 53 Minn. 259; Sheehan v. Flynn, 59 Minn. 436.

The measure of damages is the diminution in the value of the use of the land up to the time of the commencement of the action. Brakken v. Minneapolis, 29 Minn. 41; Baldwin v Chicago, 35 Minn. 355; Brakken v. Minneapolis, 32 Minn. 425; Carli v. Union Depot, 32 Minn. 101; Railway v. Cook, 57 Ark. 387; St. Louis v Biggs, 52 Ark. 240; Cumberland v. Hutchings, 65 Me. 140; Pinney v. Berry, 61 Mo. 359; Wells v. New Haven, 151 Mass. 46; Battishill v. Reed, 86 E. C. L. 696; Town v. Cheshire, 23 N.H. 83; Uline v. New York, 101 N.Y. 98; Schlitz v. Compton, 142 Ill. 511; Bare v. Hoffman, 79 Pa. St. 71; 3 Sutherland, Dam. § 1039; 5 Am. & Eng. Enc. 16, 17, note. The depreciation in value is not more permanent than its cause, and as the cause is removable in its nature and the defendant under a duty to remove it, a fact dependent upon its permanency cannot be treated in law as established. 5 Am. & Eng. Enc. 16, and cases cited 17, note 1; Railway v. Cook, supra.

The damages clearly result from the grade, construction and maintenance of a railroad on and across the premises and are within the release. Updegrove v. Pennsylvania, 132 Pa. St. 540; Radke v. Minneapolis, 41 Minn. 350; McCarty v. St. Paul, 31 Minn. 278; Benson v. Chicago, 78 Mo. 504; Chicago v. Smith, 111 Ill. 363.

Albert L. Young, for respondent.

The presence or absence of spring water is not the only test of a water course, but accumulations from rain and melting snow are also tests. 28 Am. & Eng. Enc. 946; Simmons v. Winters, 21 Ore. 35; Earl v. DeHart, 12 N.J.Eq. 280; Lambert v. Alcorn, 144 Ill. 313; Peck v. Herrington, 109 Ill. 611; Rhoads v. Davidheiser, 133 Pa. St. 226; Conniff v. City, 67 Cal. 45; Wharton v. Stevens, 84 Iowa 107; Martin v. Riddle, 26 Pa. St. 415; Hays v. Hinkleman, 68 Pa. St. 324; Borchsenius v. Chicago, 96 Wis. 448; McClure v. City, 28 Minn. 186; Sheehan v. Flynn, 59 Minn. 436. Surface water flowing in a natural well-established depression is governed by the law applicable to water courses. Kauffman v. Giesemer, 26 Pa. St. 407; Schaefer v. Marthaler, 34 Minn. 487; Sheehan v. Flynn, supra; McClure v. City, supra; Jordan v. St. Paul, 42 Minn. 172; Gillett v. Johnson, 30 Conn. 180.

Railroads have no right in the construction of their roads to diminish the flow of water in such streams. Shamleffer v. Council, 18 Kan. 24; Williamson v. Lock, 76 N.C. 478; Whitaker v. Delaware, 87 Pa. St. 34; Baltimore v. Magruder, 34 Md. 79; Johnson v. Atlantic, 35 N.H. 569; Stodghill v. Chicago, 43 Iowa 26; Young v. Chicago, 28 Wis. 171; Lyon v. Green, 42 Wis. 538; Waterman v. Connecticut, 30 Vt. 610. They should, therefore, where forced to construct an embankment, have constructed at the same time suitable culverts or tunnels through which the water should flow. Chicago v. Noffitt, 75 Ill. 524; Pittsburg v. Gilleland, 56 Pa. St. 446. For failure to construct such tunnels or culverts they are liable, whether the resulting injury arise from inundation on account of the insufficiency of such openings or the diversion of the stream. Bellinger v. New York, 23 N.Y. 42; Houston v. Parker, 50 Tex. 330; Gormley v. Sanford, 52 Ill. 160; O'Brien v. City, 25 Minn. 331. The doctrine of reasonable necessity applies to collecting as well as to disposing of surface water. Beach v. Gaylord, 43 Minn. 476; Borchsenius v. Chicago, 96 Wis. 448; Township v. Devine, 36 Minn. 53; Willitts v. Chicago, 88 Iowa 281; Cooley, Torts, 580; Stohr v. City, 54 Minn. 549; Town v. Missouri, 50 Neb. 768.

Presence or absence of negligence on the part of the railroad in constructing the roadbed over the stream was a question for the jury, and the finding of the jury on the question of negligence in constructing the roadbed over the stream is final. Waterman v. Connecticut, supra; McClure v. City, supra.

The damages for overflowing land by obstructing the natural flow of surface water is the difference between the value of the land with the ditch open and with the ditch closed. St. Louis v. Anderson, 62 Ark. 360; Ridley v. Seaboard, 118 N.C. 996; Van Orsdol v. B. C. R., 56 Iowa 470; City v. Voegler, 103 Ind. 314; Adams v. Hastings, 18 Minn. 236 (260). The measure of damages is the difference between the value of the premises immediately before and immediately after the injury. Chase v. New York, 24 Barb. 273; Easterbrook v. Erie, 51 Barb. 94; Drake v. Chicago, 63 Iowa 302; Sullens v. Chicago, 74 Iowa 659; Noe v. Chicago, 76 Iowa 360; Peden v. Chicago, 78 Iowa 131; Ziebarth v. Frye, 42 Minn. 541; Ward v. Chicago, 61 Minn. 449; Gentry v. Richmond (S. C.) 16 S.E. 893; Seely v. Alden, 61 Pa. St. 302; Young v. Gentis, 7 Ind.App. 199; Indiana v. Eberle, 110 Ind. 542; Louisville v. Sparks, 12 Ind.App. 410.



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...

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