Kansas City & E.R. Co. v. Riley

• Decision Date: 10 April 1885
• Citation: 6 P. 581,33 Kan. 374
• Court: Kansas Supreme Court
• Parties: THE KANSAS CITY & EMPORIA RAILROAD COMPANY v. JOSEPH RILEY

6 P. 581

33 Kan. 374

THE KANSAS CITY & EMPORIA RAILROAD COMPANY v. JOSEPH RILEY

Supreme Court of Kansas

April 10, 1885

Error from Lyon District Court.

ACTION by Joseph Riley against The Kansas City & Emporia Railroad Company, brought July 17, 1883, to recover $ 300, as damages for the obstruction of an alleged watercourse by reason of the construction of an embankment upon the right-of-way of the railroad company, and upon which its railroad was built. Trial at the September Term, 1883, before the court and a jury. The jury returned a verdict for the plaintiff, and assessed his damages at the sum of $ 85, and also returned the following findings of fact:

"1. Was not the Atchison, Topeka & Santa Fe road completed from Topeka to Emporia in July, 1880? A. Yes.

"2. Did not the plaintiff first go upon his premises when he got his deed, April 20, 1872? A. Yes.

"3. Is not the amount of land drained over plaintiff's lot 35 acres? If not, how many acres? A. Between 35 and 40 acres.

"4. Does or did any water flow or run over plaintiff's land except that which fell from the clouds in shape of snow or rain, on about 35 acres? A. None, except back-flow caused by insufficiency of defendant's ditch on north side of defendant's right-of-way.

"5. Is it not about 12 rods from defendant's south line to the embankment, mentioned in plaintiff's petition, and if not, how far is it? A. Yes.

"6. Are there hills around plaintiff's land, or any springs or living or running water in it? A. Slight hills, but no living or running water.

"7. Are there any gorges or ravines in plaintiff's land? If so, on which part thereof, and what are their lengths and depths? A. No.

"8. Would water back into plaintiff's land except in case of exceedingly heavy rains? A. Yes, with melting snows.

"9. How much of plaintiff's land would be likely to over-flow, and how many times a year? A. Do not know.

"10. How long would such overflow be likely to last each time? A. Do not know.

"11. Is there any well-defined water channel on plaintiff's land, aside from the ditch he dug four years ago, cut and worn by the flow of water? A. Yes.

"12. If you answer the above question No. 11 in the affirmative state where it is, and its length, its breadth, and the height of its bank. A. Through entire premises, about thirty feet wide; no abrupt banks.

"13. If you find that the defendant has damaged the plaintiff state in what the damage consists; state fully. A. By overflowing his land.

"14. Do you find any more of a watercourse on plaintiff's land than what is to be seen on most of the farms in Kansas? A. No."

After the plaintiff had introduced all his evidence, the railroad company interposed and filed its demurrer thereto, upon the ground that no cause of action was proved. Demurrer overruled. After the jury returned their verdict and special findings, the company filed its motion for a new trial, upon the ground that the verdict was contrary to the evidence that the verdict was not sustained by the evidence; that the verdict was contrary to law, and for errors in law occurring on the trial, which were duly excepted to by the railroad company. This motion was overruled by the court, and judgment entered in favor of the plaintiff upon the verdict. The Railroad Company excepted, and brings the case here.

Judgment reversed and cause remanded.

A. A. Hurd, C. N. Sterry, and Robert Dunlap, for plaintiff in error; Geo. W. McCrary, general counsel.

Peyton, Sanders & Peyton, for defendant in error.

HORTON C. J. All the Justices concurring.

OPINION

HORTON, C. J.:

This was an action to recover damages resulting from obstructing the flow of surface-water from its alleged natural course. The vital question in the case is whether, under the evidence, the plaintiff below was entitled to recover damages. We think not. The common law, as modified by constitutional and statutory law, judicial decisions, and the condition and wants of the people, is in force in this state in aid of the general statutes. Therefore the doctrine of the common law, with respect to the obstruction and flow of mere surface-water, prevails as a general rule. Under this rule, surface-water is within the control of the owner of any land upon which it falls, or over which it flows; he may use all that comes upon his own, or decline to receive any that falls on his neighbor's land. (Railroad Company v. Hammer, 22 Kan. 763; Gibbs v. Williams, 25 id. 214.)

"The simple fact that the owner of one tract of land raises an embankment upon it which prevents the surface-water falling and running upon the land of an adjoining owner from running off said land, and causes it to accumulate thereon to its damage, gives to the latter no cause of action against the former." (Railroad Co. v. Hammer, supra.)

In Palmer v. Waddell, 22 Kan. 352, the general rule applicable to surface-water was held not to apply in an exceptional case. This exception was favorably referred to in Bowlsby v. Speer, 2 Vroom 351, and Hoyt v. City of Hudson, 27 Wis. 656. The doctrine of the common law with respect to the obstruction and flow of mere surface-water is not only in force in England, but in Connecticut, Indiana, Massachusetts, Missouri, New Jersey, New Hampshire, New York, Vermont, and Wisconsin. In a late case decided in Missouri, it was said:

"We feel constrained to recognize the common-law doctrine on this subject, so often and repeatedly approved by this court without division in all its earlier and later decisions, as still the law in this state. The rule of the common law as ex-pounded in the numerous decisions quoted above, we think, after all, best promotes and conserves the varied and important interests of both the public and private individuals incident to and growing out of this question. It permits and encourages public and private improvements, and at the same time restrains those engaged in such enterprises from unnecessarily or carelessly injuring another. . . . A strict and literal application of the doctrine of the civil law would, we think, in many places and in large districts of country, materially retard, if not utterly destroy, many useful and profitable improvements, pursuits and enterprises besides railroading." (Abbott v. Railroad Co., S. C. of Mo., Oct. 1884, MS. See also Lessard v. Stram, 20 Cent. L. J. 231; Barkley v. Wilcox, 86 N.Y. 140-- 24 Albany L. J. 453, 454.)

The rule of the civil law seems to be in force in Pennsylvania, Iowa, Illinois, California, Louisiana, and is referred to with approval in Ohio. In Pennsylvania, however, the civil law does not seem to apply to house lots in towns and cities. (Bentz v. Armstrong, 8 Watts & Serg. 40.) And in Livingston v. McDonald, 21 Iowa 160, the court, in an opinion by Dillon, J., after stating the civil-law doctrine, say that--

"It may be doubted whether it will be adopted by the common-law courts of this country so far as to preclude the lower owner from making in good faith improvements which would have the effect to prevent the water of the upper estate from flowing or passing away."

We do not think that the evidence before the trial court brings the case within the exception noted in Palmer v Waddell, supra. It is apparent to us that the facts in the case of Gibbs v. Williams, 25 Kan. 214, are more nearly similar to those testified to on the trial, than disclosed in the record of Palmer v. Waddell. Plaintiff below owned and occupied lot 10 in Williams's addition to Emporia, consisting of about an acre of land. He had lived upon it with his family fifteen years. Upon the lot he had a small house, stable, chicken-pen, hog-pen, and cave; also, apple trees, cherry trees, peach trees pear trees, grape vines, etc. There was no hilly region or high bluffs around the lot. The land near by was rolling prairie. Through the lot in question there was a depression through which surface-water from adjacent land found its way. Some of the witnesses called the depression a "draw," others a "ravine," and again others a "hollow--a drain." The jury found that there was no gorge or ravine in the plaintiff's land, and while in one finding they said that "there was a well-defined water channel cut and worn by the flow of water," this is fully explained in another finding, in which they said "that the channel was through the entire premises about thirty feet wide, with no abrupt banks," and the "watercourse no more than is to be seen on most of the farms in Kansas." There was no living or running water through...