Willitts v. Chi., B. & K. C. Ry. Co.

• Decision Date: 18 May 1893
• Citation: 55 N.W. 313,88 Iowa 281
• Court: Iowa Supreme Court
• Parties: WILLITTS v. CHICAGO, B. & K. C. RY. CO.

88 Iowa 281

55 N.W. 313

WILLITTS

v.CHICAGO, B. & K. C. RY. CO.

Supreme Court of Iowa.

May 18, 1893.

Appeal from district court, Van Buren county; W. I. Babb, Judge.

The plaintiff states as his cause of action that he is the owner of the land described; that the defendant so constructed its line of railway across said lands as to throw up an embankment which prevents the surface water and other water coming on his lands from flowing off in their natural course, and causes the same to collect upon, flow back over, and remain upon his lands, to his damage $2,500. Defendant answered, denying generally, and averring that the road was constructed in the year 1871 by the Burlington & Southwestern Railway Company; that the construction was permanent, and in a skillful manner; that the cause of action is barred, the cause of action, if any, having accrued in 1871; that this defendant became the owner of the road in February, 1882, and has ever since operated it. The case was tried upon these issues, and on appeal was reversed; this court holding that evidence of facts in avoidance of the plea of the statute of limitations was not admissible without being pleaded in reply. 80 Iowa, 531, 45 N. W. Rep. 916. After the cause was remanded, the plaintiff filed a reply, admitting that the railroad was constructed by the Burlington & Southwestern Company in 1871, and that the defendant became the owner in 1882. Plaintiff alleged that after the construction the Burlington & Southwestern Company attempted to make a way for the water on plaintiff's land obstructed by the embankment to escape therefrom by cutting a ditch along the north side of the embankment within the right of way, but that the ditch has never been sufficient, for the reason that it was permitted to fill up and become obstructed, and was not kept open, or large enough, although the companies attempted, from time to time, to do so; that defendant's section foreman on that part of the road repeatedly promised to open said drainage, and put in culverts sufficient to drain said land; that he did some work in cleaning said ditch nearly every year, but has not kept it sufficiently open or large enough to carry off the water, although plaintiff had repeatedly requested him to do so. Defendant's demurrer to this reply being overruled, the case was tried upon these issues, and a verdict and judgment for the plaintiff. Defendant appeals.Sloan & Work, H. H. Trimble, and Palmer Trimble, for appellant.

Wherry & Walker, for appellee.

GIVEN, J.

1. The following facts are shown by the evidence introduced, and are not contradicted nor disputed in the testimony: The plaintiff was the owner of the land described in 1871 and ever since. In that year the Burlington & Southwestern Railway Company, having acquired a right of way over said land, constructed a solid embankment thereon as a roadbed from a point on the east line of said land southwesterly across it to Indian creek, a short distance west of the west line of the land. A bridge was constructed across Indian creek of sufficient capacity to carry off all water flowing in that stream. In consequence of the conformation of said land and the building of said embankment the surface water falling upon the land and coming thereon from the hills north and west of it was prevented from flowing from the land as it naturally would but for the embankment. Because of the embankment, the surface water stood upon said land until carried off by settling into the earth and by evaporation. About the year 1877 the Burlington & Southwestern Railway Company cut a ditch along the north side of the embankment within the right of way for the purpose of carrying said surface water southwesterly into Indian creek. By reason of this ditch becoming obstructed with sediment and debris from time to time, it failed to carry off the surface water from plaintiff's land. The ditch was several times wholly or partially cleared by each of these companies while operating the road, but was not kept so as to drain the surface water from plaintiff's land. This railroad was operated by the Burlington & Southwestern Railway Company and its receiver until February, 1882, since which time it has been owned and operated by the defendant company.

2. Appellant cites the rule of the common law, namely, “that surface water is a common enemy, which every landowner may repel at pleasure and refuse to receive on his land,” and contends that this is the rule in Iowa as between individual landowners, and alike applicable to individuals and railroad companies. Several cases are cited wherein this rule has been so applied, notably Railroad Co. v. Stevens, 73 Ind. 278;O'Connor v. Railroad Co., 52 Wis. 526, 9 N. W. Rep. 287. The rule of the civil law is that the lower land owes to the higher land the service or servitude of being bound to receive all of the water which naturally (without the hand of man) flows down upon it. The following extract from the case of Sullens v. Railway Co., 74 Iowa, 659, 38 N. W. Rep. 545, will show that neither of these rules has been adopted in Iowa by statute, as in some of the states, nor followed without qualification by this court. It is there said, in speaking of the case of Abbott v. Railway Co., 83 Mo. 271, as follows: “That case adheres to the common-law rule, and seems to depend in part upon the fact that by the statutes of Missouri the common law is made the rule of action and decision in that state. in this state there is no requirement of that kind, and we are free to determine the questions involved according to such rules of law as shall seem to us to be applicable. The difficulty which must sometimes arise from attempts to apply the strict rule of the common law to all cases is illustrated by the fact that the supreme court of Missouri was constrained to abandon it in two cases, which were overruled in the one cited above. Each case must, of necessity, depend largely upon its facts. Even in those states where the common law prevails the courts hold that the landowner must improve his property in a reasonable manner. Hosher v. Railway Co., 60 Mo. 329; Abbott v. Railway Co., supra; Pettigrew v. Evansville, 25 Wis. 229. But persons exercising this right to improve and ameliorate the condition of their own land must exercise it in a careful and prudent way. Each proprietor, in such case, is left to protect his own lands against the common enemy of all, so as to occasion no unnecessary inconvenience or damage to plaintiff. McCormick v. Railway Co., 57 Mo. 433. See, also, Benson v. Railway Co., 78 Mo. 504. This court said in Livingston v. McDonald, 21 Iowa, 172, that the rules of the civil law, so far as they deny to the upper owner the right to collect the water in a body, or precipitate it in greatly increased or unnatural quantities upon his neighbor, to the substantial injury of the latter, we deem to be just and equitable; and to this extent it is supported by the weight of authority in the common-law courts. It also said: ‘We recognize the general rule that each may do with his own as he pleases, but we also recognize the qualification that each should so use his own as not to injure his neighbor.’ Id. 173. The same principle as applied to the...