Morrissey v. Chicago, Burlington & Quincy Railroad Company
| Decision Date | 21 November 1893 |
| Docket Number | 5653 |
| Citation | 56 N.W. 946,38 Neb. 406 |
| Parties | EDWARD MORRISSEY v. CHICAGO, BURLINGTON & QUINCY RAILROAD COMPANY |
| Court | Nebraska Supreme Court |
ERROR from the district court of Johnson county. Tried below before BROADY, J.
AFFIRMED.
Daniel F. Osgood and Talbot & Bryan, for plaintiff in error:
Where waters of a stream disperse themselves over low ground without any well marked course, but gather up lower down into a defined channel, they are not surface water while in the dispersed state, and interference with them gives the injured party a right of action. (O'Connell v. East Tennessee, V. & G. R. Co., 13 S.E. [Ga.], 489; Macomber v. Godfrey, 108 Mass. 219; Gillett v Johnson, 30 Conn. 180; Briscoe v. Drought, 2 Ir. C. L., 250; West v. Taylor, 16 Ore., 165; Sullens v. Chicago, R. I. & P. R. Co., 74 Iowa 659; Moore v. Chicago, B. & Q. R. Co., 75 Iowa 263.)
A person through whose land a stream of water flows may construct embankments to prevent overflow; but in doing this must so construct them as not to throw the water upon his neighbor's lands, where it would not otherwise go. (
A railroad company, in constructing an embankment which affects the flow of surface water, must provide sufficient culverts and outlets for the surface water, so that its ordinary flow will not be affected by reason of building such embankment, and the embankment must be constructed in a careful and skillful manner, and if done carelessly and negligently, and without sufficient passage-ways, the company will be liable. (Philadelphia, W. & B. R. Co. v. Davis, 6 Am. St. Rep. [Md.], 440; Ohio & M. R. Co. v. Wachter, 123 Ill. 440; Austin & N. W. R. Co. v. Anderson, 23 Am. St. Rep. [Tex.], 351; Rowe v. St. Paul, M. & M. R. Co., 41 Minn. 384; Emery v. Raleigh & G. R. Co., 102 N. Car., 209; Chicago, B. & Q. R. Co. v. Schaffer, 124 Ill. 112.)
The owner of a dam is liable to his neighbor for injury done to his land by overflows occasioned by the dam, not only in ordinary stages of the water, but in times of ordinarily recurring freshets. (Casebeer v. Mowry, 55 Pa. 419; McCoy v. Danley, 20 Pa. 85; Bristol Hydraulic Co. v. Boyer, 67 Ind. 236.)
The superior proprietor of land inundated by a stream breaking away from its channel may turn the water back, but cannot discharge it from his own on the lands of another by any but its own channel. (Tuthill v. Scott, 43 Vt. 525; Armenlaiz v. Stillman, 67 Tex. 459; Farris v. Dudley, 78 Ala. 124; Gibbs v. Williams, 36 Am. Rep. [Kan.], 242.)
J. S. Harris, also, for plaintiff in error.
Isham Reavis, amicus curioe, on the same points made by plaintiff in error, cited: 1 Addison, Torts, 106; Louisville & N. R. Co. v. Hays, 47 Am. Rep. [Tenn.], 291; Little Rock & F. S. R. Co. v. Chapman, 43 Am. Rep. [Ark.], 280; Gillham v. Madison County R. Co., 49 Ill. 484; Drake v. Chicago, R. I. & P. R. Co., 19 N.W. [Ia.], 215; Davis v. Londgreen, 8 Neb. 43; Pyle v. Richards, 17 Neb. 180; Omaha & R. V. R. Co. v. Standen, 22 Neb. 343.
J. A. Kilroy, T. M. Marquett, and J. W. Deweese, contra:
The common law is adopted by statute and declared to be law in this state. (Con. Stats., ch. 26, sec. 2088; Wilson v. Bumstead, 12 Neb. 4.)
The case containing the generally accepted statement of the common law rule, as to right of the proprietor to obstruct or change the direction and flow of surface waters fully sustains the view expressed by the trial judge in the instructions given to the jury in this case. (Gannon v. Hargadon, 92 Mass. 106.)
The contrary rule is that of the civil law. (Martin v. Riddle, 26 Pa. 415; Kauffman v. Griesemer, 26 Pa. 407.)
The confusion in the decisions of the courts on surface water questions arises almost wholly in states that have undertaken to enforce the civil law rule. The civil law in its application to surface water has been adopted in the following cases: Nininger v. Norwood, 72 Ala. 277; Osburn v. Connor, 46 Cal. 346; Gillham v. Madison County R. Co., 49 Ill. 484; Livingston v. McDonald, 21 Iowa 160; Lattimore v. Davis, 14 La. 161; Philadelphia, W. & B. R. Co. v. Davis, 34 Am. & Eng. R. R. Cas. [Md.], 143; Porter v. Durham, 74 N. Car., 767; Butler v. Peck, 16 Ohio St. 334; Tootle v. Clifton, 22 Ohio St. 247; Crawford v. Rambo, 44 Ohio St. 279; Kauffman v. Griesemer, 26 Pa. 407; Louisville & N. R. Co. v. Hays, 11 Lea [Tenn.], 382; Boyd v. Conklin, 20 N.W. [Mich.], 595; Little Rock & F. S. R. Co. v. Chapman, 39 Ark. 463; Gillison v. Charleston, 16 W.Va. 284.
The instructions given by the court to the jury in this case are sustained by the well established decisions of all the states adhering to the common law rule. (Taylor v. Fickas, 64 Ind. 173; Cairo & V. R. Co. v. Stevens, 73 Ind. 281; Shelbyville & Brandywine Turnpike Co. v. Green, 99 Ind. 215; Cairo & V. R. Co. v. Houry, 77 Ind. 364; Morrison v. Bucksport & B. R. Co., 67 Me. 355; Bowlsby v. Speer, 31 N.J.L. 352; Chadeayne v. Robinson, 55 Conn. 350; Grant v. Allen, 41 Conn. 156; Gannon v. Hargadon, 10 Allen [Mass.], 106; Sweet v. Cutts, 50 N. H., 439; Buffum v. Harris, 5 R. I., 253.)
The following cases hold that surface water can be treated as a common enemy, and fought against by embankments, ditches, or other obstructions, by any land-owner or railroad company in the construction of its road, without legal damage arising in favor of any party who is injured thereby: Morrison v. Bucksport & B. R. Co., 67 Me. 356; Greely v. Maine C. R. Co., 53 Me. 200; Bangor v. Lansil, 51 Me. 521; Murphy v. Kelley, 68 Me. 521; Union v. Durkes, 38 N.J.L. 21; Bowlsby v. Speer, 31 N.J.L. 351; Grant v. Allen, 41 Conn. 156; Chadeayne v. Robinson, 55 Conn. 349; Bates v. Smith, 100 Mass. 181; Turner v. Dartmouth, 13 Allen [Mass.], 291; Flagg v. Worcester, 13 Gray [Mass.], 601; Gannon v. Hargadon, 10 Allen [Mass.], 106; Parks v. Newburyport, 10 Gray [Mass.], 28; Sweet v. Cutts, 50 N. H., 439; Jones v. St. Louis, I. M. & S. R. Co., 29 Am. & Eng. R. Cas. [Mo.], 523.
In this case the railroad company did not interfere with any natural water-course. Water which once escapes from the banks of a natural channel, or a stream of water, by reason of a flood in the stream, occasioned by heavy rains or melting of snow upon the surrounding country, is surface water. (McCormick v. Kansas City, St. J. & C. B. R. Co., 57 Mo. 438; Benson v. Chicago & A. R. Co., 78 Mo. 504; Abbott v. Kansas City, St. J. & C. B. R. Co., 83 Mo. 271; Taylor v. Fickas, 64 Ind. 168; Cairo & V. R. Co. v. Stevens, 73 Ind. 278; Lessard v. Stram, 62 Wis. 112; Johnson v. Chicago, St. P., M. & O. R. Co., 80 Wis. 641; Kansas City & E. R. Co. v. Riley, 33 Kan. 374; Jordan v. St. Paul, M. & M. R. Co., 42 Minn. 172; Rowe v. St. Paul, M. & M. R. Co., 41 Minn. 384; Moyer v. New York C. & H. R. R. Co., 88 N.Y. 351; Bell's Exrs. v. Norfolk S. R. Co., 36 Am. & Eng. R. Cas. [N. Car.], 651; Shane v. Kansas City, St. J. & C. B. R. Co., 5 Am. & Eng. R. Cas. [Mo.], 71.)
The railroad company was not obliged to make culverts through its embankments, but had the right to build obstructions and fight off surface water in the proper construction of a railroad track with the necessary embankments. Still it would not be permitted to collect and concentrate surface waters by reason of its embankments, and then pour them through an artificial ditch or culvert in unusual quantities upon the land of adjacent proprietors. (Fremont, E. & M. V. R. Co. v. Marley, 25 Neb. 147; Pyle v. Richards, 17 Neb. 180; Shane v. Kansas City, St. J. & C. B. R. Co., 71 Mo. 237; Cairo & V. R. Co. v. Stevens, 73 Ind. 278; Hoganon v. St. Paul, M. & M. R. Co., 17 N.W. [Minn.], 374; Chicago & A. R. Co. v. Benson, 20 Am. & Eng. R. Cas. [Mo.], 101; McCormick v. Kansas City St. J. & C. B. R. Co., 70 Mo. 359.)
The opinion contains a statement of the case.
Plaintiff sued the defendant in the district court of Johnson county Nebraska, 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 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 eighty-acre tract on which the alleged damage accrued. The Nemaha river is about one and a half or two 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 eighteen feet between the point of contract 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...
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