St. Louis & S. F. R. Co. v. Stephenson

• Decision Date: 10 November 1914
• Docket Number: Case Number: 2967
• Citation: 144 P. 387,43 Okla. 676,1914 OK 545
• Parties: ST. LOUIS & S. F. R. CO. v. STEPHENSON.
• Court: Oklahoma Supreme Court

1914 OK 545

144 P. 387

43 Okla. 676

ST. LOUIS & S. F. R. CO. v. STEPHENSON.

Case Number: 2967

Supreme Court of Oklahoma

Decided: November 10, 1914

Syllabus

¶0 PUBLIC LANDS--Railroads--Construction of Embankment--Right to Recover Damages--Loss of Rental Value--Letters Patent. In an action for damages to land by reason of the construction of a railway embankment, where the pleadings and evidence show conclusively that the permanent character of the embankment and its continuance as originally constructed necessarily produced the injury to the freehold and caused the entire depreciation in the value thereof at the time of the construction, and that such injury had wholly occurred prior to the time when plaintiff acquired such land, held, that she took it in its then known condition, and the issuance of a patent conveying the land did not confer upon her a right of action for the recovery of damages for injuries thereto occurring prior to her acquisition of title. Held, further, that a loss of rental value does not constitute an injury for which damages may be recovered where, as in this case, there was permanent injury to the land itself.

W. F. Evans and R. A. Kleinschmidt, and E. H. Foster, for plaintiff in error.

W. T. Banks, for defendant in error.

BLEAKMORE, J.

¶1 This case presents error from the district court of Okfuskee county. On March 3, 1910, defendant in error, plaintiff below, commenced this action against plaintiff in error, as defendant. The parties will be referred to herein as they appeared in the trial court. The amended petition of plaintiff is in three counts, and is set forth in full:

"That some time in the year 1899, the exact date being unknown to plaintiff, defendant constructed and completed a line of railroad through Okfuskee county, Oklahoma, and constructed an embankment without culverts for one-half mile through the north half of the southwest quarter of section 14, township 10 north, range 11 east, in Okfuskee county, Okla., and that thereafter plaintiff, being a member of the Creek Tribe of Indians, received a certificate of allotment to said land as a part of her share of the lands of the Creek Nation, and that on or about the 7th day of January, 1904, she received a patent to said land from said Creek Nation, and from the United States, since which time she has been the legal owner of the real estate so described; that the act of the defendant railroad company in constructing said embankment through said land and the failure to construct proper and sufficient culverts to enable surface water to run off as it had done before the construction of said embankment, causes the surface water from the hills to run down against said embankment and back up over about twenty acres of said tract of land and to stand there through most of the year, thereby ruining said land for agricultural purposes for all times to come, which said damage has been continuous for all the time which plaintiff has owned said land, and that by the continuous overflow of said land, caused by said embankment, plaintiff has been deprived of the use and benefit of said land, to her damage in the sum of $ 1,000.

"(2) That plaintiff had planted cotton on said twenty acres of land in the years 1908 and 1909, and that said surface water, running down from the hills and being caught by said embankment overflowed said land, and destroyed said cotton crop for said years; that said land would have produced a bale of cotton per acre for each of said years but for said railroad embankment catching and holding the water on said land; but that the construction of said embankment without the necessary culverts to prevent the escape of said surface water caused the destruction of said cotton crop for the years 1908 and 1909, whereby plaintiff was damaged in the sum of $ 499.50 for each of said years, or an aggregate of $ 999.

"(3) That by the wrongful acts of the defendant in constructing said embankment without the necessary culverts, and causing the continuous overflow of twenty acres of land, said land is rendered wholly useless for any purpose, and that, in causing the destruction of said cotton crop for the years 1908 and 1909, she has sustained damages in the full sum of $ 1,999, for which she prays judgment."

¶2 Defendant demurred generally to the first and second counts of the petition, and, as a special ground of demurrer to the first count, alleged that the cause of action therein set forth was barred by the statute of limitations. Upon demurrer being overruled and exceptions saved, defendant answered, averring that the railroad in question was constructed by the St. Louis, Oklahoma & Southern Railway Company under authority conferred upon it by an act of Congress of March 30, 1896, and was completed and put in operation in the year 1899, since which time said road has been maintained as a permanent structure, and that the plaintiff's cause of action, if any she has, accrued upon the completion of said road, and that this action was not brought within three years after the completion of the same or within three years after the injuries alleged to have occurred, and that her cause of action is barred by the statute of limitations, as provided in sections 4478 and 4490, Mansf. Dig. of Ark., put in force in the Indian Territory by act of Congress of May 2, 1890 (chapter 182, 26 St. at L. 81), and continued in force up until November 16, 1907. Plaintiff replied denying that the cause of action accrued upon the completion of the roadbed, and alleging that the same accrued by the backing of surface water upon the land and within three years before the filing of the suit, and "that the damage to her land is a continuous injury, as set forth in her petition, and not subject to any statutory limitations." The evidence disclosed that after the construction of said railroad through the lands described in the petition said lands were allotted to plaintiff, as a member of the Creek Tribe of Indians, and that thereafter, on the 7th of January, 1904, a patent was issued conveying to her said lands, excepting therefrom the right of way of said road; that there had been no change in the condition of the embankment extending through said lands since its construction. The father and next friend of the plaintiff testified in this regard as follows:

"Q. Did you tell the jury the way that embankment was built in the first instance? A. Well, there was a dump running east and west through the 80 acres of land; the dump was constructed running pretty near east and west. Q. Pretty much like it is now? A. Just exactly. Q. No change has been made since that time? A. No, sir; no change has been made."

¶3 And again he says:

"Q. You say it overflows every year about the same? A. Every year except a dry year like this? Q. In time of ordinary rainfall does it overflow? A. When we have a good deal of rain it overflows. Q. And has continued to do so since the embankment was put there ten years ago? A. Yes, sir. Q. Then I understand you to say that, notwithstanding that, in 1907 that land was worth about $ 50.00 an acre? A. It would have been worth that if that embankment wasn't there; that is what I aimed for the jury to understand me, if that railroad hadn't put that dump through there it would have been worth $ 50.00 an acre. Q. As a matter of fact, with the dump there it wasn't worth it? A. No, sir. Q. Was it worth any more in 1907 than it was in 1908? A. No, sir; the dump through there has injured the price of the land. Q. And it had done that from the time it was put there? A. Yes, sir. Q. And the injury to the land has been continuous since that time? A. Yes, sir. Q. And it was in the same condition in 1904? Yes, sir."

¶4 Among the numerous assignments of error to be considered are: (1) Plaintiff cannot recover for injury to real estate caused by the obstruction of mere surface water not confined to a definite channel; (2) that the plaintiff is not entitled to maintain the action, she having acquired title to the land long after the embankment was constructed; and (3) error of the trial court in admitting evidence and instructing the jury as to the measure of damages. These assignments of error will be considered in the foregoing order. In C., R. I. & P. Ry. Co. v. Johnson, 25 Okla. 760, 107 P. 662, 27 L.R.A. (N. S.) 879, it is said:

"The highest courts of the following states, recognizing the rule that the right to divert surface waters under the common law both in England and America had been qualified, hold that a proprietor, without a grant, cannot collect surface water into an artificial channel or volume and pour it upon the land of another to his injury, or by means of ditches or other artificial means cause the same to flow upon the lands of another where it would not otherwise go to his injury. Crabtree v. Baker, 75 Ala. 91, 51 Am. Rep. 424; Springfield & Memphis R. Co. v. Henry, 44 Ark. 360; Livingston v. McDonald, 21 Iowa 160, 89 Am. Dec. 563; Sullens v. Chicago, etc., Ry. Co., 74 Iowa 659, 38 N.W. 545, 7 Am. St. Rep. 501; Robertson v. Daviess Gravel Road Co., 116 Ky. 913, 77 S.W. 189, 25 Ky. Law Rep. 1114; Gregory v. Bush, 64 Mich. 37, 31 N.W. 90, 8 Am. St. Rep. 797; Hogenson v. St. Paul, M. & M. R. Co., 31 Minn. 224, 17 N.W. 374; Sheehan v. Flynn, 59 Minn. 436, 61 N.W. 462, 26 L.R.A. 632; Kelly v. Dunning, 39 N.J. Eq. 482; Bowlsby v. Speer, 31 N.J.L. 351, 86 Am. Dec. 216; McCormick v. Kansas City, St. Joseph & Council Bluffs R. Co., 70 Mo. 359, 35 Am. Rep. 431; Id., 57 Mo. 433; Porter v. Durham et al., 74 N.C. 767; Fremont, E. & M. V. R. Co. v. Marley, 25 Neb. 138, 40 N.W. 948, 13 Am. St. Rep. 482; Chalkley v. Richmond, 88 Va. 402, 14 S.E. 339, 29 Am. St. Rep. 730."

¶5 And again in the same opinion it is said:

"In the case of C., R. I. & P. Ry. Co. v. Groves, 20 Okla. 101, 93 P. 755, 22 L.R.A. (N. S.) 802, this court said: 'That the owner of the land cannot collect the water into an artificial channel or volume and pour it upon

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