Reichert v. Northern Pacific Railway Co.

• Decision Date: 25 September 1917
• Citation: 167 N.W. 127,39 N.D. 153
• Court: North Dakota Supreme Court

167 N.W. 127

39 N.D. 153

HENRY L. REICHERT and William G. Ray, Copartners, Doing Business under the Firm Name and Style of Reichert & Ray, Respondents, v. NORTHERN PACIFIC RAILWAY COMPANY, a Corporation, Appellant

Supreme Court of North Dakota

September 25, 1917

OPINION

BRUCE Ch. J.

An able and exhaustive reargument has been had in this case, yet we are constrained to adhere to our original holding. The complaint alleges:

"That the defendant company in constructing said embankment through the city of Dickinson, and across said water course and channel of drainage, unnecessarily, carelessly, and negligently entirely filled up and destroyed said water course and channel of drainage, and in the place and stead thereof put through its embankment, part way, a small crooked open ditch and the other part of the way a small iron culvert connecting with said ditch, which said ditch and culvert were entirely insufficient in size and fall to carry off the waters of said water course or storm waters of said drainage area or basin in times of rain, and were so carelessly and negligently constructed and maintained that it entirely failed to carry off said water; that because of the negligent construction and maintenance of said embankment, the negligent construction and maintenance of said ditch and culvert, and the lack of size, fall, and capacity of said ditch and culvert, on July 28, 1914, storm waters dammed up against said embankment and flowed over and upon the hereinbefore described premises of the plaintiffs, and into said basements.

"That on July 28, 1914, and for a long time prior thereto, the defendant had notice and knowledge of the fact that said embankment entirely destroyed said drainage channel, and that said ditch and culvert were insufficient to carry off the waters of said drainage basin and channel in times of rain."

There can be no question that, before the construction of the railroad embankment, the waters of the area in question flowed down to the Hart river through a natural water course ravine, gully, or natural depression, having a fixed and determined course and which formed the natural and usual channel for the escape of the waters," and that, even if the so-called common-law rule of surface waters had maintained, the upper landowners would have had the right to use such channel. It is also the established law that surface waters having an accustomed flow in a drainage channel...