Rowe v. St. Paul, Minneapolis & Manitoba Ry. Co.

• Decision Date: 09 August 1889
• Parties: JAMES ROWE <I>vs.</I> ST. PAUL, MINNEAPOLIS & MANITOBA RAILWAY COMPANY.
• Court: Minnesota Supreme Court

Page 384

41 Minn. 384

JAMES ROWE vs. ST. PAUL, MINNEAPOLIS & MANITOBA RAILWAY COMPANY.

Supreme Court of Minnesota.

August 9, 1889.

Appeal by plaintiff from an order of the district court for Clay county, Mills, J., presiding, refusing a new trial, the action having been dismissed at the trial for failure of the complaint to state a cause of action.

O. Mosness, for appellant.

M. D. Grover and W. E. Dodge, for respondent.

VANDERBURGH, J.

The defendant's railroad traverses, in a north and south direction, township 142, range 46, which is alleged to be an unusually flat and level prairie, having a gradual and uniform slope of two to four feet to the mile westerly to the Red river. Plaintiff's farm is situate in the same township, about one mile east of the defendant's right of way, which lies consequently two to four feet lower than plaintiff's land. The action is for damages suffered by plaintiff by reason of the obstruction interposed by the defendant's road-bed to the free passage of surface water from the adjacent lands, so as to prevent the drainage thereof through or over defendant's right of way towards the river. Plaintiff owns three-quarters of section 10, in the township named, and the complaint alleges that during the year 1882 "said railroad was so improperly, carelessly, negligently, and unskilfully constructed, managed, and maintained, over and across said township 142, range 46, that the road-bed of said railroad unnecessarily dammed up and impeded and entirely stopped the flow of the usual surface water which naturally gathers and flows through a large and well defined coulie or natural depression in the prairie there, which said coulie gathers and accumulates enormous quantities of said water, and extends from the east towards the west in an irregular direction, at or near the centre of said section ten towards and across said railroad of the defendant, and stopped and impeded the usual surface water which naturally and otherwise would have passed from the east to the west with the natural slope of the country across the entire of said section ten and other lands thereto adjacent, by reason of wholly inadequate and insufficient water-ways and culverts through the road-bed of said railroad to allow the usual amount of such surface water to pass under and through said road-bed; and thereby, in the spring season of the year aforesaid, the said surface water was made to accumulate and stand for and during the period of about three weeks in such enormous quantities that several miles of country on the east side of said railroad, in said town-ship 142, was overflowed and covered with water; and that thereby the said land of the plaintiff, for and during the period of three weeks in the spring of the year 1882, became and was overflowed and covered with water, and then and there and thereby the crop so growing on said premises, consisting of about 85 acres of grain, of the value of $1,800, became and was greatly damaged, and was wholly destroyed."

From this it appears that the road-bed stopped and impeded the usual surface water which naturally and otherwise would have passed from east to west with the natural slope of the country, and dammed up the "well-defined coulie or natural depression in the prairie," extending from near plaintiff's land, east and west, across the defendant's road, through which large quantities of water are gathered and accumulated. It will be observed that the negligence and unskilfulness in the construction and maintenance of the road complained of are particularly stated to be the want of adequate and sufficient water-ways and culverts through the road-bed of defendant to allow the usual amount of surface water to pass under and through the same. The only question in the case, then, is whether, upon these facts and the rules of law applicable thereto, the defendant, as owner of the lower estate, was bound to provide sufficient drainage through its right of way to prevent the upper or dominant estate from being overflowed by surface water; it being admitted that adequate waterways or culverts have not been provided for such purpose.

In respect to responsibility for the disposition of surface water, the common-law rule prevails in this state, and, subject to the reasonable...