Quinn v. Chicago, M. & St. P. Ry. Co.

• Decision Date: 06 April 1909
• Citation: 120 N.W. 884,23 S.D. 126
• Parties: QUINN v. CHICAGO, M. & ST. P. RY. CO.
• Court: South Dakota Supreme Court

120 N.W. 884

23 S.D. 126

QUINN v. CHICAGO, M. & ST. P. RY. CO.

Supreme Court of South Dakota

April 6, 1909

Appeal from Circuit Court, Hutchinson County.

Action by M. F. Quinn against the Chicago, Milwaukee & St. Paul Railway Company. From a judgment for plaintiff, defendant appeals. Affirmed.

Preston & Hannett, for appellant.

W. J Hooper and J. L. Quinn, for respondent.

CORSON J.

This action was instituted by the plaintiff, the owner of a tract of land, to recover of the defendant damages which he alleges he has sustained by reason of the negligent damming up of the waters of a ravine, water course, or draw by the defendant which flowed over the plaintiff's land and across the defendant's right of way. Verdict and judgment being in favor of the plaintiff, the defendant has appealed.

It is alleged in the complaint, in substance, that continuously since the year 1878 the plaintiff has been the owner of a quarter section of land in Bon Homme county, and in possession of the same either personally or by tenants; that there is a natural water course running across said land of the plaintiff, and across the defendant's right of way which water course or ravine extends about two miles from plaintiff's said land, and empties into Emanuel creek; that said ravine or water course is well defined its entire length; that said water course or ravine is the natural drain for all of such land, and such other land in that vicinity, and the only drain; that in the year 1879 the said defendant acquired a right of way across the said premises, which said right of way intersects the said ravine or water course; that in said year the defendant, in constructing its roadbed along its said right of way, constructed an artificial embankment across said water course or ravine where the same intersects said right of way; that by reason of the said embankment there is no means for the surface water to escape from the land of the plaintiff other than by the said ravine or water course; that before the erection of said embankment the said draw, ravine, or water course completely drained all of the plaintiff's said land; that the railway company negligently constructed said embankment without an opening or culvert to allow the waters from said tract of land to escape, thereby causing the surface waters produced by rains and melting snow to accumulate in large quantities covering several acres of the plaintiff's land, resulting in damage to the plaintiff of $1,000, for which sum the plaintiff demands judgment. The defendant admitted its incorporation, and that it constructed the embankment referred to in the plaintiff's complaint, and also pleaded the statute of limitations, and denied all the other allegations of the complaint. It will thus be seen that the water course claimed to have been dammed up by the defendant's embankment, and the waters therein flowing, thrown back upon plaintiff's land, did not show such a water course as to constitute a running stream having well-defined bed and banks, but a waterway or channel made by the depression or draw extending over the plaintiff's land.

While the amount involved in this action is comparatively small, the principles of law applicable to the case are important, and we, therefore, deem it proper to quote quite liberally from the charge of the learned trial court. The court, among other matters, charged the jury as follows: "Every proprietor of land may lawfully improve his property by doing what is reasonably necessary for that purpose, and, unless guilty of some act of negligence in the manner of its execution, will not be answerable to an adjoining proprietor, although he may thereby cause the surface waters to flow onto the premises of the latter to his damage; but, if in the execution of said enterprise he is guilty of negligence which is a natural and proximate cause of injury to his neighbor, he is accountable therefor. *** The rule of law that the owner of a tract of land may obstruct the flow of surface water across his land appears to have an exception, which is that, where surface water having no definite source is supplied from the falling rains and melting snow of the hilly regions or high bluffs, and owing to the natural formation of the surface of the ground, is forced to seek an outlet or natural channel, and escapes through such channel regularly during the spring and summer months of every year, and in seasons of heavy rain, and such has always been the case so far as the memory of man runs, therefore surface waters may have such an accustomed flow as to form, at certain places, a channel or course. *** A railway company, or other proprietor of land, cannot throw an embankment across such a ravine as above described, into and through which the surface water of a large scope of country is accustomed to flow, without providing adequate means for the usual flowage of water seeking its natural outlet. The company was under no obligation to guard against the flow of surface waters upon the premises of the plaintiff under ordinary circumstances, and where the conformation of the surrounding country did not force the water towards a given point of final drainage, where a channel had been formed through which it seeks its natural outlet. The question whether or not the defendant railroad company was negligent in the construction of its embankment across such a ravine as is in question here, which is alleged to have traversed the plaintiff's land, is a question which you must determine from all the evidence and circumstances in evidence before you, and in passing upon this question you should take in consideration the length of the ravine or draw; the area of land which it and its branches and feeders drain, above and below the point where the railroad crosses it; the height of its banks; its width; and whether or not water flowed or stood in the same for any length of time. You should consider the configuration of the ground at the place where the railroad embankment crosses it, the height of the embankment, and all other facts which have been testified to before you which will aid in deciding upon the effect that the construction of said embankment had upon the surface waters which flowed down said draw. *** If you find, under the rules of law thus given to you, that the defendant company has negligently constructed its embankment, that the embankment itself has been the cause and occasion of any injury to this plaintiff-then the plaintiff would be entitled to recover a just and fair compensation for such injury. If the defendant company has not been guilty of negligence in the matters called to your attention, then your verdict ought to be for the defendant, and in any event the defendant company would not be liable for any damages which were not the result of its negligence in the erection of this embankment."

It is contended by the appellant that the court in its charge to the jury, in the view he takes of the law applicable to this case, was in error; but in our opinion, if the court errs at all in its charge, the error was in favor of the...