Missouri Pacific Railway Company v. Hemingway

• Decision Date: 08 January 1902
• Docket Number: 10,024
• Citation: 88 N.W. 673,63 Neb. 610
• Parties: MISSOURI PACIFIC RAILWAY COMPANY v. JOHN M. HEMINGWAY
• Court: Nebraska Supreme Court

88 N.W. 673

63 Neb. 610

MISSOURI PACIFIC RAILWAY COMPANY v. JOHN M. HEMINGWAY

No. 10,024

Supreme Court of Nebraska

January 8, 1902

ERROR from the district court for Lancaster county. Tried below before CORNISH, J. Affirmed.

AFFIRMED.

Bailey P. Waggener, James W. Orr and Adolphus R. Talbot, for plaintiff in error.

Stevens Love & Frampton, contra.

ALBERT C. DUFFIE and AMES, CC. concur.

OPINION

ALBERT, C.

This action was brought for the recovery of damages resulting from the alleged wrongful construction by the defendant company of an embankment across a ravine, whereby the surface water was diverted from its natural course and discharged in large quantities upon the premises of the plaintiff, inflicting the damages complained of. A trial resulted in a verdict and judgment for the plaintiff. The defendant brings the case here on error.

The petition, omitting the formal parts, is as follows:

"(2.) That on and long prior to the 23d day of April, 1892, plaintiff was the owner in fee of the following described property, to-wit: lots 3, 4, block 26, in the town of Hickman, Lancaster county, Nebraska, and was in possession thereof, and had erected thereon a livery and feed stable, and other buildings, in which were contained a large number of horses and hay and grain, carriages, harness, etc. necessary for the carrying on of a livery and feed business. (3.) That adjacent to said lot on the south and southeast side thereof is a ravine or draw of considerable depth, extending from the higher lands above said property and for a distance of miles, into which ravine or draw the water from a large tract of land collected, and is emptied into a stream known as 'Salt Creek,' a short distance from said property. (4.) That on or about the day of , 1888, the defendant company erected an embankment across said ravine or draw and between plaintiff's said property and Salt Creek, to a height of about 6 feet, which embankment is the road-bed of said defendant company, and is in constant use for the purpose of a business of said company, and that said company failed and neglected to place a bridge or culvert or other opening across said draw of sufficient size to permit the ordinary flow of water to pass unobstructed through said embankment, and that the said defendant company has ever since the said construction of said embankment wrongfully and unlawfully obstructed said draw in such a manner as to cause the water to overflow upon the premises of plaintiff above described. (5.) That on or about the 23d day of April, 1892, by reason of said wrongful and unlawful obstruction the water from said ravine was caused to overflow upon the property of this plaintiff, and by reason of said overflow his barns and stables were filled with water to a depth of three feet, and thereby causing great damage to the property of this plaintiff, and to his horses, which were compelled to remain in the water for several hours, and to one valuable stallion, which was rendered thereby wholly worthless, to plaintiff's damage in the sum of $ 1,000, and that by reason of said overflow plaintiffs property, consisting of stables, carriages, etc. was damaged in the sum of $ 200. (6.) That afterwards, to-wit, on or about the 3d day of May, 1893, the water, by reason of said obstruction as aforesaid, again overflowed plaintiff's property, causing great damage to plaintiff's horses and to one jack, which remained in the water for several hours, thereby causing him to become worthless, to plaintiff's damage in the sum of $ 1,000, and damages to plaintiff's premises and other property in the sum of $ 200, by reason of which matters and things as above set out, plaintiff has been damaged in the sum of $ 2,400."

The defendant interposed a general demurrer, which was overruled which ruling is now assigned as error. The petition is assailed on two grounds: First, because it shows on its face that the cause of action is barred by the statute of limitations; and, second, because it does not allege that the embankment crosses a watercourse or channel, nor that it was wrongfully constructed. As to the first, we think it is disposed of in Omaha & R. V. R. Co. v. Standen, 22 Neb. 343, 35 N.W. 183, wherein it is held, in effect, that where a railway bridge is so negligently constructed as to form an unlawful obstruction, and becomes a nuisance by causing an overflow of water, no right of action accrues to a land-owner until he sustains an actual injury caused by such obstruction, as by the overflow of his lands. The case of Omaha & R. V. R. Co. v. Moschel, 38 Neb. 281, 56 N.W. 875, cited by defendant, is not in point. There the damages sought to be recovered were such as resulted from the proper construction and operation of the road, and would have been a proper subject of inquiry in condemnation proceedings. But the damages in this case are such as resulted from the improper construction and operation of the road, and could not have been taken into account in the proceedings for the condemnation of the property. To hold that such damages should be taken into account in such proceedings would render the construction of railroads a most hazardous enterprise. As to the second ground, it appears from the petition that the embankment was built across a ravine, which was a part of the natural system of drainage of surface water; that no bridge, culvert or opening of sufficient size was placed therein to permit the surface water collecting in such ravine to pass through unobstructed; that, in consequence of such omission, plaintiff's premises were flooded, and the damages complained of sustained. We think this is sufficient, under the circumstances, to show that the embankment was improperly constructed. While...