Van Orsdal v. Burlington, Cedar Rapids & N. Ry. Co.

• Decision Date: 20 June 1881
• Citation: 9 N.W. 379,56 Iowa 470
• Court: Iowa Supreme Court
• Parties: VAN ORSDAL v. BURLINGTON, CEDAR RAPIDS & NORTHERN RY. CO.

56 Iowa 470

9 N.W. 379

VAN ORSDAL

v.BURLINGTON, CEDAR RAPIDS & NORTHERN RY. CO.

Supreme Court of Iowa.

Filed June 20, 1881.

Appeal from Buchanan circuit court.

Action to recover damages sustained by plaintiff by reason of a stream of water being diverted in the construction of defendant's railroad, whereby sand and earth were washed upon and deposited on plaintiff's land. Judgment upon a verdict was rendered for plaintiff. Defendant appeals.J. & S. K. Tracy and D. W. Bruckhart, for appellant.

Hasner & Van Orsdal, for appellee.

BECK, J.

1. The petition alleges that the defendant's railroad is located upon plaintiff's farm, and crosses two sloughs thereon, the water of which, in the natural state, was clear and pure, and ran over a grassy bottom; that, in the construction of the railroad, one of the sloughs was dammed, and the water thereof diverted from its natural course, and conducted for a long distance through loose sand and dirt into the other slough, over which a culvert was constructed; that the water flowing through the loose sand and dirt from the first-named slough, bore a large quantity thereof, which was deposited upon plaintiff's land; that by means of “the faulty construction” of the railroad, which has not been changed, plaintiff has sustained damages, and that the injury from the deposits made upon his land is permanent, and commenced in July, 1876. The defendant, in its answer, alleges that the railroad was constructed in 1873, and that the defendant became the owner thereof in 1876, and denies any negligence or unskilfulness in the construction of the road. It is averred that if any cause of action ever existed it accrued more than five years before the suit was commenced, and is, therefore, barred by the statute of limitations.

2. The plaintiff testified that his farm, “without the railroad constructed so as to dam up the slough,” would be worth $25 dollars per acre. He was then asked the present value of the farm, with the railroad constructed as it is, without a culvert over the slough. Objections to this question were overruled, and the plaintiff answered that it is worth $21 per acre. The admission of this evidence is the ground of the first objection to the judgment urged by defendant's counsel. It is insisted that the evidence should have been limited to the value of the land immediately before and after the road was built in order to show plaintiff's damages. But the injury was not sustained upon the completion of the road, and did not occur till the expiration of three years after. The evidence could not have been directed to the time immediately before and after the building of the road, for no injury had then occurred.

3. It is further insisted that the claim of plaintiff is based upon the injury to the use of the land, and not to the land itself. We do not so understand the pleadings. The injury complained of is alleged to be a permanent injury to plaintiff's farm.

4. The defendant offered to prove by an engineer that the railroad is built as railroads are usually constructed in such locations. The evidence was rejected. The issue...