Kroeger v. Twin Buttes R. Co.

• Decision Date: 24 October 1912
• Docket Number: Civil 1185
• Parties: HENRY KROEGER, Appellant, v. THE TWIN BUTTES RAILROAD COMPANY, a Corporation, Appellee
• Court: Arizona Supreme Court

127 P. 735

14 Ariz. 269

HENRY KROEGER, Appellant, v. THE TWIN BUTTES RAILROAD COMPANY, a Corporation, Appellee

Civil No. 1185

Supreme Court of Arizona

October 24, 1912

APPEAL from a judgment of the District Court of the First Judicial District, in and for the County of Pima. John H. Campbell Judge. Reversed and remanded.

On rehearing. For former opinion, see Kroeger v Twin Buttes R.R. Co., 13 Ariz. 348, 114 P. 553.

STATEMENT OF FACTS BY THE COURT.

To the south and east of the city of Tucson the surface of the country is nearly level, extending to the mountains beyond from twelve to twenty miles. The general slope of this mesa is from the east and southward to the north and westward. The slope is about uniform and the grade light. Plaintiff's dwelling-house and outhouses are situated upon premises comprised of six lots located on the east side of the city of Tucson and on the mesa mentioned above. To the east of plaintiff's premises is an elevation or ridge about seventy feet higher than plaintiff's land, and about one-half mile from the directly south of the plaintiff's land is another elevation having a low area between the two high elevations with a north and westward slope or water fall. The surface water from this area and many miles distant from the south, east, and southeast flows in a north and westward direction. The surface water, in seeking a lower level, cut into the surface at least two arroyos; one about one hundred and fifty feet north of plaintiff's lands and another about six hundred feet south of these premises. The water, after passage through these arroyos, passed on and into the streets and gutters of the city of Tucson. The plaintiff has occupied the premises as his residence for fifteen or twenty years prior to the year 1904, and no surface water accumulated on his premises sufficient to injure his buildings or property.

In 1904, defendant constructed its railroad from a point north of plaintiff's premises to several miles south, and this railroad is located about seventy-five feet west of plaintiff's dwelling-house. The embankment for about sixty rods north of plaintiff's premises is three feet higher than the surface at plaintiff's house, and the embankment is about four feet higher than the surface for about one-half a mile to the south of his property. Defendant constructed a culvert fifteen feet long and twenty-one inches deep under its track at the arroyo, which is mentioned as being one hundred and fifty feet north of the dwelling-house and over the arroyo, six hundred feet south of the dwelling-house, defendant constructed a culvert thirty feet long and twenty-one inches deep under its track. Along the east side of the track was a ditch.

From the time the railroad was constructed to the 19th of July, 1909, the railroad embankment, at times of rains, caused some surface water to accumulate along the track in the vicinity of plaintiff's property, but not of sufficient amount to do any great damage, if any, to his premises. On the 19th of July, 1909, a heavy rain fell over the mesa described. The water from the rain accumulated along the east side of the roadbed at and near the culverts mentioned, and particularly at the culvert to the south of plaintiff's premises, and, following the ditch northward in great quantities, filled the reservoir above and to the east of the track caused by the embankment until the water ran over the track and covered plaintiff's premises. Having no outlet, the water stood over plaintiff's premises for several hours, causing the walls of his buildings to soften and fall, and causing the damage complained of. The items of damage claimed were shown.

On motion, the court instructed the jury to return a verdict for the defendant, which was recorded, and, after denying a motion for a new trial, the court rendered judgment for the defendant. From which judgment and order plaintiff has appealed, and claims that the instructions to the jury to return a verdict is error, and that the verdict is contrary to the law and the evidence.

Messrs. Worsley & Feier, for Appellants.

Mr. Frank H. Hereford and Mr. Frank E. Curley, for Appellee.

OPINION

CUNNINGHAM, J.

On March 11, 1911, the supreme court of the territory of Arizona handed down its opinion in this case, reversing and remanding same. Kroeger v. Twin Buttes R.R. Co., 13 Ariz. 348, 114 P. 553. Subsequently, and before the advent of statehood On February 14, 1912, that court granted appellee's motion for a rehearing. It is not clear upon which of the several grounds urged the order was based, but we find the case pending for our consideration, and, under such conditions, we will consider the same as though the rehearing was granted generally upon its merits as though it had never been considered and decided (3 Cyc. 219, par. 6) further than to settle the question of practice not going to the merits of the controversy.

If, upon any theory of the case made by the evidence under the pleadings, the plaintiff would have been entitled to a verdict, it was an error for the trial court to direct the verdict. This is so elementary that we do not deem it necessary to cite authorities.

An examination of the complaint discloses that plaintiff claims damages resulted to him because the defendant's track prevented the surface water from taking its natural course and diverting it and causing it to be "dammed back upon plaintiff's lands," etc., and because the "defendant company did not use due and reasonable care to drain and keep drained by good and sufficient culvert or culverts at the time it constructed its said railroad track," etc., "and has not provided good and sufficient culverts to carry away the water from the land of the plaintiff, but has caused the water to be dammed back upon the land," etc., and because the defendant, having knowledge of the conformation of the country, "wrongfully, unlawfully, willfully, intending to injure and annoy plaintiff, caused divers large quantities of water to be diverted from its natural course and dammed back and forced upon the lands, etc., of the plaintiff, and that the defendant . . . did not build a sufficient culvert under its roadbed to carry away the surface flow of water, thereby causing the water to accumulate and force it back upon the lands . . . of plaintiff," and alleging, by reason of the negligence, in not providing good and sufficient culverts under its road, caused the damage, and the company knew "that it would divert the water from its natural course and dam it back upon the land . . . and cause plaintiff great and irreparable damage." And finally the plaintiff alleges "that, by reason of the wrongful, unlawful, willful, and intentional injury and negligence on the part of the defendant company in not building sufficient culvert or culverts under its roadbed and track to carry away the water and prevent the surface flow from accumulating and taking its natural course, . . . plaintiff has suffered the damage complained of." The only fair construction that can be placed upon the complaint, is, in brief, charging the improper construction of the railroad in not supplying sufficient waterways to carry off the surface water that would reasonably be expected to fall in the area of country lying east and south of the level area across which the embankment extends, and finding its way by its usual course was obstructed by the embankment on the right of way, and the water cast in large quantities back upon plaintiff's premises. The culverts were not sufficiently large or not a sufficient number of...