Morrissey v. Chi., B. & Q. R. Co.

• Decision Date: 21 November 1893
• Citation: 38 Neb. 406,56 N.W. 946
• Parties: MORRISSEY v. CHICAGO, B. & Q. R. CO.
• Court: Nebraska Supreme Court

38 Neb. 406

56 N.W. 946

MORRISSEY

v.CHICAGO, B. & Q. R. CO.

Supreme Court of Nebraska.

Nov. 21, 1893.

Syllabus by the Court.

1. Where the gravamen of plaintiff's action was the alleged negligent, improper, and careless construction of an embankment, from which resulted the overflow of plaintiff's land, it is proper to presume, in the absence of any proof on the subject, that said embankment was, for railway purposes, properly constructed.

2. A water course must be a stream in fact, as distinguished from mere surface drainage rendered necessary by freshets or other extraordinary causes, though the flow of water need not be constant. Following definition by Maxwell, J., in Pyle v. Richards, 22 N. W. Rep. 370, 17 Neb. 180.

3. The term “surface water” includes such as is carried off by surface drainage,--that is, drainage independently of a water course,--and for the construction of an embankment proper for railroad purposes, which deflects such surface water from its normal course, a railroad company is not liable in damages to the proprietor of neighboring lands thereby incidentally overflowed and injured. Maxwell, C. J., dissents.

Commissioners' decision. Error to district court, Johnson county; Broady, Judge.

Action by Edward Morrissey against the Chicago, Burlington & Quincy Railroad Company. Defendant had judgment, and plaintiff brings error. Affirmed.D. F. Osgood, Talbot & Bryan, and J. S. Harris, for plaintiff in error.

J. A. Kilroy, T. M. Marquette, and J. W. Deweese, for defendant in error.

I. Reavis, amicus curiae.

RYAN, C.

Plaintiff sued the defendant in the district court of Johnson county, Neb., for damages which plaintiff alleged had been caused him by the defendant's improper, negligent, and careless construction of a portion of its railroad, whereby the normal flowage of water over the land of plaintiff was greatly increased, causing the destruction in 1888 and in 1889 of crops and personal property thereon situated. Issue was duly joined, and a trial resulted in a verdict for the defendant in accordance with the direct instructions of the court so to find. The line of railroad of the defendant, running in an almost due westerly direction, crosses Yankee creek at a point about a quarter of a mile north and a little eastward of the northwest corner of the plaintiff's 80-acre tract, on which the alleged damage accrued. The Nemaha river is about 1 1/2 or 2 miles north of above-mentioned railroad crossing of Yankee creek, which empties its waters into said river. From the above crossing, the line of railroad, continuing still in a westerly direction, touches the said creek at one of its numerous bends, from whence, pursuing the same westerly course for about one-fourth of a mile over bottom lands bordering on said creek, it reaches higher ground. There is no question made as to the necessity of putting in an embankment or other structure of the height of about 18 feet between the point of contact of the railroad with Yankee creek and the higher ground of which mention has just been made. An embankment was made without an opening through it, however, from which it resulted that the water which in former freshets had been discharged over the bottom land now crossed by the embankment was arrested in its course towards the Nemaha river, and diverted to Yankee creek, causing thereby an increased volume of water to seek an outlet by way of that creek and the bottom lands beyond it, including those of plaintiff. To this increased flowage of water plaintiff attributed his injuries complained of, and for those injuries sought to hold the defendant liable.

The defendant proved that along its 18-foot fill it had dug borrow pits, and caused them to connect by a ditch with Yankee creek, into which creek all the water which, but for the fill, would have flowed across defendant's right of way, was emptied into Yankee creek by way of said line of borrow pits and ditch. While the evidence showed that the gound occupied by the fill was not level, but rather that there was a slight elevation along the bank of the creek on one skirting side, and towards the bluffs on the other skirting side, yet the whole was tilled and grass land, and was in no respect the bed of a stream. No present mention is made of the elements of damage or other matters in evidence, for, as the decision of this court depends so largely upon the correctness of the district court's conception of the law applicable to such facts as have been already stated, comment upon these matters should logically follow the instructions given the jury, which were as follows: “(1) A long time ago there was a difference in the law of surface waters between the law of continental Europe, called the civil law, and the law of England, called the common law, which difference has come down through the states of this Union. The law of this state is with the common law, which is that upon the boundaries of his own land, not interfering with any natural or prescriptive water course, the owner may erect such barriers as he may deem necessary to keep off surface water or overflowing floods coming from or across adjacent lands; and from any consequent repulsion turning aside or heaping up these waters to the injury of other lands he will not be responsible; but such waters as fall in rain and snow on his land, or come thereon by surface drainage from or over contiguous lands, he must keep within his boundaries, or permit them to flow off without artificial interference, unless, within the limits of his own land, he can turn them into a natural water course, which he has a right to do. (2) A railroad company, by its right of way, has the same right as a farm owner has to his farm, or any other land proprietor within the law of the above instruction, as to surface water. (3) When and after water escapes from a natural stream by reason of a flood, and spreads over the low lands, it is then surface water, and continues so until it gets back into some natural stream. (4) The jury are instructed that a water course may exist without a perpetual or constant flow of water, but there must be a channel in the ground showing the location of the stream, and it must be a stream in fact, as distinguished from mere surface drainage caused by freshets or overflows of creeks or streams of water. (5) Under the law as above given, the undisputed testimony shows that the defendant obstructed only surface water, and not any water course, and that defendant is not liable on the case made by the evidence in this case. You will therefore find for defendant.”

The petition claims damages resulting from improper, negligent, and careless construction of the railroad embankment. There was no evidence of such improper construction as is alleged, except inferentially from proof--First, that the former course of a part of the surface water was over ground subsequently occupied by defendant's embankment; second, that before the embankment was made plaintiff's land had never been overflowed; third, that since the embankment had existed plaintiff's land had been overflowed once in 1888 and once in 1889,--the embankment having been made in 1882. Plaintiff contends that if by proper caution the defendant might have avoided or prevented the injury to plaintiff's premises, the want of such caution is sufficient to justify a verdict for the necessarily resulting damages. Rau v. Railroad Co., 13 Minn. 442, (Gil. 407;)Bellinger v. Railroad Co., 23 N. Y. 42;Radcliff's Ex'rs v. Mayor, etc., 4 N. Y. 195; Lawrence v. Railroad Co., 16 Q. B. 643; Crawford v. Rambo, 44 Ohio St. 279, 7 N. E. Rep. 429. In the case of Gillham v. Railroad Co., 49 Ill. 484, Breese, C. J., delivering the opinion of the court, said: “The case was this: Plaintiff in error was the owner of a tract of land less elevated than the land in the neighborhood, from which all the water that fell upon it from rains or otherwise flowed onto the land of the plaintiff, and which, by means of a depression in his land, ran off his land to adjoining land, and thence into a natural lake. The defendant, the railroad company, made a large embankment on the line of plaintiff's land, entirely filling up this channel, thereby throwing the water back upon plaintiff's land. Negligence in so doing without leaving an opening in the embankment for the water to flow on and escape was alleged in the declaration. A demurrer was sustained to the declaration. For error in sustaining such demurrer the judgment was reversed.” These citations seem to establish quite satisfactorily the proposition that the defendant is liable for whatever damage results from a failure on its part to exercise proper care in the construction of its embankment. There was no evidence as to whether or not the embankment was the safest means by which the railroad company could have crossed that part of the bottom land over which its embankment was made, having reference solely to the construction and operation of its line of railroad. In the absence of any proof on that subject, it is perhaps not going too far to assume that the railroad company, in so far as concerns its safety and efficiency in the operation of its line of railroad, adopted the most approved course in constructing this embankment. As to its liability for injury which that course is alleged to have caused, the question in this case arises. Before the action was begun, the statute of limitations had barred any right to recovery which plaintiff might have had for injuries directly resulting from the proper construction of the defendant's embankment. This eliminates that class of questions from our consideration. See Carriger v. Railroad Co., 7 Lea, 388; Railroad Co. v. Moschell, 56 N. W. Rep. 875, (filed this term.)

The questions left for our inquiry are: First, was the water which was diverted by the embankment mere surface water, as assumed in the third, fourth, and fifth instructions of the court above quoted? And,...