Soules v. N. Pac. Ry. Co.

Decision Date26 April 1916
Citation157 N.W. 823,34 N.D. 7
PartiesSOULES et al. v. NORTHERN PAC. RY. CO.
CourtNorth Dakota Supreme Court


Syllabus by the Court.

Both under the civil law rule as to surface waters and under the so-called common-law or common enemy rule, a natural drainway must be kept open to carry the water into the streams, and the lower estate is subject to a natural servitude for that purpose.

Proof that a drain or ditch receives the surface water of a drainage area of some 168 acres, is several feet in depth, has a well-defined channel, and, though it has grass growing at its sides, has a space at the bottom which is worn away by the water to a breadth of 3 or 4 feet, and that such drain or ditch serves to convey the waters of the area into a river or stream, will justify the jury in holding that such drain or ditch is a natural drainway or drainage channel, and this though there is no evidence that the water ran in the same at all times, but merely that the drain or ditch served to convey the melting snows and surface waters.

It is the duty of a lower landowner who builds a structure across a natural drainway to provide for the natural passage through such obstruction of all of the water which may be reasonably anticipated to drain therein, and this is a continuing duty.

Where there is evidence which tends to show that a drainway is a natural drainway, and that it has been obstructed by a lower landowner, and that such obstruction occasioned the flooding of and injuries to the property of an upper landowner, the burden of proof is upon the defendant or lower landowner, when sued for such damages, to prove that the storm which occasioned the flood was unprecedented; that it could not have been reasonably anticipated, and need not have been provided against.

Evidence examined, and held not to be such as to justify a holding, as a matter of law, that the storm in question was so unprecedented that it should not have been anticipated, but rather that the fact was one for the jury to pass upon.

Extraordinary or unprecedented floods are floods which are of such unusual occurrence that they could not have been foreseen by men of ordinary experience and prudence. Ordinary floods are those, the occurrence of which may be reasonably anticipated from the general experience of men residing in the region where such floods happen (citing Words and Phrases, “Extraordinary Flood; see, also First and Second Series, Ordinary Flood).

In passing upon what is or what is not an extraordinary flood or whether it should have been anticipated and provided against, the question to be decided is: Considering the rains of the past, the topographical and climatic conditions of the region and the nature of the drainage basin as to the perviousness of the soil, the presence or absence of trees or herbage which would tend to increase or prevent the rapid running off of the water, would or should a reasonably prudent man have foreseen the danger and provided against it?”

An instruction in an action against a railway company for negligence in obstructing a natural channel, and thereby damaging plaintiff's goods, that, “If you believe that the plaintiffs are entitled to recover as heretofore instructed, then it is your duty to determine the amount of damages sustained by reason of the flooding of these premises, and they are entitled to make matters whole,” is sufficiently definite as to the measure of damages, in the absence of any requested instructions upon the subject.

One is sufficiently qualified to testify as to the value of a stock of hardware and to the injury to it by flood and its depreciation in value who is shown to have worked in a hardware store for at least seven years, to have been manager of such store during such time, and to have had charge of the buying of goods and the fixing of prices at which they should be resold, and to have been in charge of such goods since the damage was done.

Where a railway company is sought to be held liable for damages by flooding occasioned by an insufficient culvert, it is not error to allow in evidence proof of the fact that prior to the construction of the culvert a pile bridge was maintained across the drain in question. Such evidence tends, not merely to show the nature of the drainway, its necessity for the carrying away of the surface water which ran therein, but the fact as to whether the drainway was a natural channel or not.

It is not error in an action against a railway company for failure to maintain an adequate culvert to allow proof that such culvert could have been provided at a reasonable cost.

Where a railway company is sued for obstructing a natural drainway and not providing sufficient culverts for carrying off the water, it is not error to allow proof that premises near those of the plaintiffs' were flooded in the past, as such evidence tends to show the nature of the drainage district, the course of the water, and generally the necessity of providing for a sufficient outlet for the same.

The extent to which cumulative evidence may be introduced is largely within the discretion of the trial court, and, where there is much evidence in the record as to the nature of a downpour of rain, a case will not be reversed merely because a trial court has excluded evidence that the flood occasioned no injury to premises in a different hollow or drainage basin, although such hollow or drainage basin was close to the one in question.

The charge to a jury must be taken as a whole, and, where such charge as a whole clearly presents the issues of a case, mere technical defects in portions thereof are not grounds for a reversal of the judgment.

The conclusiveness of expert evidence depends largely upon the similarity of the data or formula upon which it is based, and proof of the adequacy of a drain for a certain area and that a culvert was constructed in accordance with prescribed formula which were computed on areas of a certain size is not conclusive as to the adequacy of such culvert, unless it is shown that the topography of the drainage areas are similar; it being clear that the flowage even from the same downpour would be much greater in a given time in a hilly basin than on an almost level plain.

Appeal from District Court, Stark County; Crawford, Judge.

Action by James Soules and another, copartners doing business as Soules & Butler, against the Northern Pacific Railway Company, a foreign corporation. From judgment for plaintiffs, defendant appeals. Affirmed.

The following is a plat of part of the city of Dickinson, showing area flooded July 28, 1914:


This is an action to recover damages for the flooding of the plaintiffs' stock of goods which were contained in a retail hardware store in the city of Dickinson, N. D. The complaint alleges that the defendant company on July 28th, and for a long time prior thereto, owned, operated, and maintained a right of way for its railroad extending in an easterly and westerly direction in the city of Dickinson; that upon said right of way on said date, and for a long time prior thereto, the defendant maintained a high grade or embankment of earth rising several feet above the surrounding surface of the land; that said grade or embankment extended in a generally easterly and westerly direction through the city of Dickinson; that said grade or embankment crosses a natural water course between the freight depot and the passenger depot of the defendant company in such city; that said water course has a well-defined bed and banks, and a stream of water flowing through said water course; that said water course and bed thereof is the natural drainage for surface and storm waters for a large part of the city of Dickinson and surrounding territory, and drains the surface and storm water from a large area; that the premises of the plaintiffs, hereinbefore described, are in the basin drained by said water course; 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 waters; 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; 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 insufficientto carry off the waters of said drainage basin and channel in times of rain.

The answer of the defendant was in all respects a general denial, but contained the added allegation and defense that:

Defendant alleges the fact to be that the damage and injury suffered by the plaintiffs herein were occasioned and caused by an unusual and unprecedented storm and flood which occurred in the city of Dickinson and vicinity on or about the 28th day of July, 1914, and said damage was not in any manner caused through any negligence on the part of the defendant railway company.”

A verdict was rendered in favor of the plaintiff for the sum of $2,500, and from the judgment entered therein, this appeal has been taken.


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26 cases
  • McCausland v. Jarrell
    • United States
    • West Virginia Supreme Court
    • December 18, 1951
    ... ... Page 739 ... the substitute which he has provided for the natural channel he will be liable.' In Soules v. Northern Pacific Railway Company, 34 N.D. 7, 157 N.W. 823, L.R.A.1917A, 501, the evidence showed that the ditch in question was a natural drain ... ...
  • Reichert v. N. Pac. Ry. Co.
    • United States
    • North Dakota Supreme Court
    • March 1, 1918
    ... ... [1] The injury complained of was the result of the same storm which was considered by this court in the case of Soules v. Northern Pacific R. R. Co., 34 N. D. 7, 157 N. W. 823, L. R. A. 1917A, 501, the hotel of the plaintiff being situated on Villard street and just one block west of the property damaged and under consideration in the prior action. With the exception of that part which pertains to the property ... ...
  • John v. Edward
    • United States
    • North Dakota Supreme Court
    • November 16, 1918
    ... ... during the same storm as that [41 N.D. 318] which was ... considered in the cases of Soules v. Northern P. R ... Co. 34 N.D. 7, L.R.A.1917A, 501, 157 N.W. 823, and ... Reichert v. Northern P. R. Co. 39 N.D. 114 at 115, ... 167 N.W. 127 ... ...
  • Paulson v. Reeds
    • United States
    • North Dakota Supreme Court
    • March 1, 1918
    ... ... will not weigh conflicting evidence ...          In the ... case of Soules ... ...
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