Lunden v. Brookings & Sioux Falls Ry. Co.
| Decision Date | 22 April 1913 |
| Citation | 141 N.W. 93,31 S.D. 357 |
| Court | South Dakota Supreme Court |
| Parties | ANNA B. LUNDEN et al., Plaintiffs and respondents, v. BROOKINGS & SIOUX FALLS RAILWAY COMPANY, Defendant and appellant. |
Appeal from Circuit Court, Brookings County, SD
Affirmed
M. E. Culhane, Olaf Eidem
Attorneys for Appellant.
Hall, Alexander & Purdy
Attorneys for Respondents.
Opinion filed April 22, 1913; Rehearing denied June 24, 1913
This is an appeal from the judgment of the trial court and an order denying a new trial in an action, wherein plaintiffs recovered a verdict for damages which they claimed to have suffered through the negligence of the defendant corporation.
Respondents moved for the dismissal of this appeal for the reason that, after the judgment herein and prior to this appeal, there was appointed, in another action, a receiver for defendant corporation, and there was nothing showing that the receiver had authorized this appeal. Respondents have also moved that the purported transcript filed under the provisions of chapter 15, Laws 1911, be stricken from the records, and have interposed, in their brief, objections to the consideration of the merits of this appeal, alleging that the assignments of error are not properly before us; respondents contending that the original record was never properly settled. Inasmuch as satisfactory proof has been submitted to the court showing that the present appeal is authorized by the receiver; and inasmuch as the defects in the condition of the record herein, if such defects exist, undoubtedly arose in part from the uncertainty existing regarding the proper procedure upon appeal, under the 1911 statute, and also arose in part from the fact that this case was tried a long time before the record was prepared, and that, at the time such record was prepared, the judge who tried the case had been succeeded by another; and especially inasmuch as our views upon the merits of this appeal make the consideration of these matters of practice unnecessary--we have felt justified in disregarding these motions and objections and treating the appeal as though the record was in proper condition and there had been sufficient assignments of error to present the alleged errors relied upon.
Plaintiffs were the owners of a farm situated a few miles south of the city of Brookings, S.D. The defendant corporation purchased a right of way and built a grade for a railroad running south from said city of Brookings, which right of way passed along the east edge of plaintiff's quarter-section of land. In establishing the grade the defendant dug a ditch along each side thereof. Some miles north of plaintiffs' land there was quite a rise of land through which this right of way passed. On each side of this rise, but particularly to the west thereof, were natural drains into which the waters from the surrounding territory were gathered and carried in a southerly direction; the natural drains converging at a point on the right of way of defendant at the south end of the south slope of the hill above referred to. From this point to the south the land was comparatively level, and the natural drains, while running in a southerly direction, did not follow the line of the right of way of defendant, but varied therefrom both to the east and to the west, making it necessary, if the water was to follow in its natural course, that there be left several openings through said grade. The natural drains would finally carry the water into a draw that leaves the right of way a short distance from the northeast corner of plaintiffs' land and crosses said land in a southwesterly direction. Openings were left in the grade at different points where the natural drain crosses the right of way, but it was the contention of the plaintiffs--which contention was upheld by the verdict of the jury--that the openings so left were insufficient and were so constructed that the water, gathered into the natural drain, did not, follow the same through its windings, and that damage resulted to the plaintiffs through the flowing over their land of a much greater volume of water than would have passed over same if it were not for the defendant's grade and ditches. Plaintiffs contended--and it must be assumed that the jury agreed with such contention--that the water, instead of following the windings of the natural drains (which they claimed would have caused the water to have spread out over several flat tracts and especially to have accumulated in one quite large natural basin, which spreading and accumulation, taken in connection with the retard of said water by growing grass, would have caused much of the water to have seeped into the ground or to have evaporated), was gathered into the ditch on the east side of defendant's grade and carried directly down said ditch to a point near plaintiffs' land where the same was carried through an opening in defendant's grade and from thence discharged directly over plaintiffs' land, thus resulting in the discharge of an excessive amount of water upon their land. Plaintiffs contended, and offered proof to show, that their crops were destroyed during the season of 1908; that during the season of 1909 part of their land was unsuitable for cultivation; and that, in order to restore their land to a condition fitted for cultivation, it was necessary for them to have, and that they had constructed across their farm, a large ditch to carry the water into the Sioux river. Defendant contended that, in establishing its grade, it constructed the same in a proper manner and in accordance with the approved methods for building railroad grades; that the ditches dug in connection therewith were necessary for the proper drainage of the right of way; that sufficient openings were left, wherever the natural drain crossed the right of way, so that water flowing in such natural drain was allowed to and did follow the natural water courses; and that the excess of water coming upon plaintiffs' land during the seasons of 1908 and 1909 was in no manner caused by any improper construction of defendant's grade or ditches, but came solely through unprecedented rainfalls during those two seasons. Defendant also contended that plaintiffs waived all rights to any damages by having conveyed to defendant the right of way along their land after the grade and ditches had been constructed.
Appellant has assigned as error the refusal of the court...
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