Walker v. New Mexico & S. P. R. Co.

• Decision Date: 26 August 1893
• Citation: 34 P. 43,7 N.M. 282,1893 -NMSC- 027
• Parties: WALKER v. NEW MEXICO & S. P. R. CO.
• Court: New Mexico Supreme Court

34 P. 43

7 N.M. 282, 1893 -NMSC- 027

WALKER v. NEW MEXICO & S. P. R. CO.

Supreme Court of New Mexico

August 26, 1893

Error to district court, Socorro county; A. A. Freeman, Judge.

Action by Margaret E. Walker against the New Mexico & Southern Pacific Railroad Company to recover damages for injury to real property caused by defendant's railroad embankment. There was a judgment for defendant, and plaintiff brings error. Affirmed.

Neill B. Field and James G. Fitch, for plaintiff in error.

Henry L. Waldo and W. B. Childers, for defendant in error.

FALL J.

Plaintiff in error sued defendant for damages for injury to real property caused by defendant's railroad embankment stopping or obstructing natural or artificial channels through which water was accustomed to flow, thereby overflowing and damaging plaintiff's land. General verdict was for plaintiff, but, upon answers to special questions propounded, the court set aside the verdict, and entered judgment for defendant. Two errors are assigned: (1) That the court erred in entering judgment in favor of the defendant on the verdict of the jury; (2) that the court erred in refusing to enter judgment in favor of plaintiff in error.

If the act of the territorial legislature of 1889 is constitutional then we can find no error in the action of the court in setting aside the general verdict, and entering judgment upon the special findings. But it is contended strongly that the act referred to is unconstitutional, in that it is in conflict with article 7 of the amendments to the constitution of the United States. ^[1]

O'BRIEN C.J., and LEE and SEEDS. JJ., concur.

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Notes:

^[1] Amendments to constitution of the United States, article 7, provides as follows: "In suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury shall be otherwise re-examined in any court of the United States, than according to the rules of the common law." The act of 1889 is as follows: "Section 1. In all trials by jury in the district courts, the court shall, at the request of the parties, or either of them, or their counsel, in addition to the general verdict, direct the jury to find upon particular questions of fact to be stated in writing by the party or parties requesting the same. Sec. 2. When the special finding of facts is inconsistent with the general verdict, the former shall control the latter, and the court shall give judgment accordingly." Mr. Justice Miller, in his lectures on Constitutional Law, (page 493,) speaking of article 7 of the amendments, says: "This article of the amendments to the constitution *** applies to the powers exercised by the government of the United States, and not to those of the states;" and, as further stated by the same eminent writer, this has been repeatedly decided. Livingston v Moore, 7 Pet. 469; The Justices v. Murray, 9 Wall. 274; Edwards v. Elliott, 21 Wall. 532; Fox v. Ohio, 5 How. 434. Our...