142 Iowa 146 | Iowa | 1909
The opinion on the original submission of this case will be found in 115 N. W. 1013. . A rehearing was granted because of our conviction that a wrong conclusion was reached in the fourth division of the opinion filed, and this opinion will discuss that feature of the case only. On all other matters the opinion of our lamented Brother Bishop is adopted and incorporated herein in his own language, except as to a few minor matters -of detail. Plaintiff claims that during the year 1903 he was the lessee in possession of the Barlow lands lying in townships 46 and 47, range 88. Respecting the lands, it is conceded that the general slope thereof is to the south/ and they are traversed in part by two streams, Big Whisky creek and Little Whisky creek, flowing down ' from the higher lands lying to the north. Big Whisky creek flows on to the south; the waters ultimately finding their way to the Missouri River. Little Whisky creek, on reaching the center of section 25, ceases to be a stream with defined banks. Prom there the waters spread out over the general surface to the south. Prior to said year 1903 the defendant had constructed its line of railway east and west across the southern portion of the lands. In general the roadbed as constructed consisted of an earth embankment; the top being brought to an elevation of four or five feet above the natural surface. At the crossing of
If the jury find, from a fair preponderance of the evidence, that the land west of Big Whisky creek, over which defendant’s embankment and railway track were constructed and located, is nearly level, that there is no natural or artificial stream crossed by said embankment,*151 and no defined channel or way in which the water, coming onto said land to the north of said railway track, could pass to the south, even if defendant’s right of way and railway embankment had not been constructed, and if you further find- that, by reason of the character and condition of the land at the time defendant’s embankment was originally constructed, such railway construction would necessarily interfere with the flow of surface water and cause it to accumulate and stand on the land from which the right of way is taken, then, if you so find, you are instructed that for such necessary interference with the flow of surface water as was occasioned by the proper construction of said railway over said land no recovery in this action can be had.
A railway company, by virtue of acquiring right of way across a tract of land, acquires the right to construct its track in the usual and ordinary way. It may construct it upon an embankment, if such is the better method, considering the character and lay of the ground in the immediate locality. It is not obliged to so construct its road as, to avoid entirely the obstructing or interfering with the natural flow of surface water which does not flow in well-defined channels. On the contrary, it may divert and obstruct the flow of such water to the extent that -the same may be reasonably necessary to accommodate the same to the customary and usual- mode of constructing a railroa'd in such places, and to the extent reasonably necessary to enable the railway company to so construct and maintain its road as to promote the reasonable and safe operation of trains thereover.
And on its own motion the court instructed as follows:
You are instucted, as a matter of law, that it is the duty of the railway company, in building its railroad when it crosses a stream or lowland, to provide passageways for the water reasonably sufficient to allow it to flow through without being diverted from its natural course or being backed up so as to cause damages to the property of another.
Complaint is made because the court refused to give
In Winklemans v. Railway Co., 62 Iowa, 14, a question arose as to the competency of testimony showing that a spring had been destroyed by the construction of the road, and we said: “We think the evidence was competent, and deem it sufficient to say that the plaintiff did not by the evidence seek to show that the road was improperly constructed. No witness was asked whether the embankment which destroyed the spring was necessary to tjie proper construction of the road. It will be presumed that it was necessary.” *
In Britton v. Railway Company, 59 Iowa, 540, the identical question now before us was determined adversely to the’ appellee’s contention. There on the trial the question was asked: “State what effect the construction of the grade of this railroad through this land has upon that portion which is low ’ and sometimes wet — whether or not it injures it.” The answer was: “I think it had a tendency to back water upon it.” In disposing of the question as to the competency of the testimony, we said: “If we understand counsel, it is claimed the question and answer are objectionable, because the tendency of the evidence was to permit a recovery because of the faulty construction of the road. We do not think any such thought is contained in either question or answer. If, because of the construction of the road, the land was made more wet than it otherwise would have been, this fact should be considered in estimating damages, and this was all the plaintiffs sought to prove.”
In Drake v. Railway Co., 63 Iowa, 302,, it was said: “If we could suppose a case where the construction of a railroad would necessarily interfere with the flow of surface water, and cause it to accumulate and stand on the land from which the right of way is taken, the injury that would accrue therefrom should, we think, be considered by
In 2 Lewis on Eminent Domain, section 496, is said: “It would be difficult to enumerate the various elements of damages proper to be considered when part of a tract is taken. . . . Any interference with the drainage of the land or with the flow of surface water, or with the water supply, are recognized by all authorities as proper items to be taken into account in assessing the damages.”
The Massachusetts court says:. “The cuts and embankments and necessary gutters of the railroad track will unavoidably modify the flow of surface water, and sometimes cause damage by keeping it back or projecting it in large quantities upon lands adjoining the road. Injuries to land from such cases would seem clearly to fall within the class of effects which have been held to afford ground for the assessment of damages under the statute.” Walker v. Old Colony Ry. Co., 103 Mass. 10 (4 Am. Rep., 509). See, also, Morrison v. Bucksport Ry. Co., 67 Me., 353; Mills, Eminent Domain, sections 160, 189; Pflegar v. Railway Co., 28 Minn. 510 (11 N. W. 72); Line v. Railway Co., 218 Pa. 604 (67 Atl. 899).
Under the authorities cited, any damage necessarily caused by thé proper construction of the defendant’s road was included in the damages paid for the right of way and
In our discussion we shall not attempt to follow the precise order as thus marked out. It is true there is no direct testimony in the record on the subject of when the injury occurred in the sense that any witness testified to the date of the flood, but such was not required. It was in testimony: That the haying months are August and September; that in the year in question, “at the time the hay should have been cut, there was a good stand of a good
Obviously enough the rule of rental value, thus stated, must govern in cases presenting no more than an injury and damage to growing crops, and in respect of such cases it would seem to be proper practice to plead in direct language the value of the' crop destroyed as the basis of the recoverable damage. If the thing destroyed, although it is a part of the realty, had a value which could be' accurately measured and ascertained without reference to the soil on which it stands, or out of which it grows, the recovery may be the'value of the thing thus destroyed.
Eor error in refusing the instructions asked by the defendant and for error in the instruction given, the judgment must be reversed.