Reed v. Chi., B. & Q. R. Co.
| Decision Date | 10 February 1910 |
| Docket Number | No. 15,906.,15,906. |
| Citation | 86 Neb. 54,124 N.W. 917 |
| Parties | REED v. CHICAGO, B. & Q. R. CO. |
| Court | Nebraska Supreme Court |
OPINION TEXT STARTS HERE
Syllabus by the Court.
Where damages were paid to a riparian owner for the diversion of a stream from his land, such damages do not cover future injuries by reason of the defective construction of a railroad embankment in such a manner as to retain flood waters, which otherwise would have escaped through a natural channel.
Where an injury to crops is caused by the negligent construction of a railroad embankment, which arrested and held upon the land the flood waters of a natural stream, the cause of action accrues at the date of the injury, and not at the date of the negligent construction of the improvement. Chicago, B. & Q. R. Co. v. Mitchell, 74 Neb. 563, 104 N. W. 1144.
Evidence examined, and held to sustain the verdict.
Appeal from District Court, Harlan County; Dungan, Judge.
Action by James S. Reed against the Chicago, Burlington & Quincy Railroad Company. Judgment for plaintiff, and defendant appeals. Affirmed.
James E. Kelby and Frank E. Bishop, for appellant.
Gomer Thomas and John Everson, for appellee.
The plaintiff is a resident of Harlan county, owning land which lies in the valley of Sappa creek, which is a small stream running easterly and emptying into the Republican river. The railroad track of the defendant company runs about 20 rods south of the south line of plaintiff's land, crossing the creek about a quarter of a mile west of the west line of plaintiff's land, and also a few rods east of the plaintiff's east line. From the point where the railroad crossed it to the west of the plaintiff's land the creek originally flowed in a northeasterly direction into and through his premises, thence curved again to the southeast to a point south and east of his land, where it was again intersected by the railroad. A solid embankment was constructed across the stream at both points of crossing, except that at the east crossing two iron drainage pipes, each 24 inches in diameter, were placed in the embankment to drain the old bed of the stream north of the railroad and dispose of the natural drainage of the lands lying north and west, which was discharged into the old bed by several long ravines. The railroad company dug a new channel for the stream from the point where the embankment dammed it on the west to where it crossed the channel again on the east, so that the stream when it struck the embankment was diverted at right angles across the chord of the arc formed by its old channel and the railroad, and ran in the ditch dug along the south side of the railroad. In 1886-87, at the time the railroad was built, the change in the stream was made with the consent of John Reed, a brother of the plaintiff, who then owned the land, and he was paid $150 damages for this diversion of the stream from its natural course. In 1903 the plaintiff, with knowledge of these facts, purchased the land. On July 1, 1905, there was an excessive fall of rain in this vicinity, between five and six inches falling during the latter part of the night and early in the morning of July 1, 1905. The flood waters, which before the construction of the railroad had formerly overflowed the channel of the creek, and flowed down what is known as the “first bottom” following the windings of the stream, being impeded by the railroad embankment, and the new channel not being of capacity to carry them off rapidly, accumulated until they rose to a height sufficient to flow over the railroad, which was washed out, and the waters rushed into the old channel. The flood waters were again dammed by the embankment to the east of plaintiff's land where the two drain pipes were placed. The water again accumulated until it rose to the top of the embankment, when it again broke through at or near the old channel. The plaintiff's land was flooded to a height of from 6 to 10 feet, ruining his crops. destroying his hay and corn in crib, injuring the furniture in his house, and drowning his domestic animals, damages for which he seeks to recover in this action.
The petition alleges that the defendant negligently and carelessly failed to build or maintain a bridge or other means for the water to escape at the place to the east of plaintiff's farm, where the railroad crossed the channel, but negligently built an embankment there, and that during wet periods of the year a large amount of water flowed into the old channel, but could not escape therefrom, and would overflow and stand upon plaintiff's land, and that the defendant negligently failed to maintain a sufficient dam or embankment at the point where it sought to divert the stream from the natural channel to the artificial channel, and that by reason of this negligence the water on the 1st of July, 1905, flowed over the artificial embankment into the old channel, and, on account of no proper means of escape being provided, they caused the damage complained of. The defendant alleged that the railroad was built in 1887 as now constructed; that the then owner was paid all damages by reason of such construction; that the present condition existed at the time plaintiff secured any rights in the land, as he well knew; that whatever damages resulted from the construction of the railroad and the change in the channel of the creek occurred in 1887; and that the cause of...
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