53 Neb. 237 | Neb. | 1897
The Nemaha river is one of the natural water courses of the state, and drains a large area of territory. When floods or freshets occur the channel of this river overflows, and the stream then becomes very much widened, extending and flowing at such times from the foot-hills upon one side to the foot-hills upon the other side of the river’s valley. In the valley of this river, in Richardson county, is situate the farm of Oliver Emmert. In 1883
1. As already stated the embankment was constructed in 1883. The injuries sued for occurred in 1889 and 1892, and one proposition relied upon here for a reversal of the judgment of the district court is that Emmert’s cause of action arose at the time of the negligent construction-of the embankment, or more than four years before the bringing of this action, and hence was. barred when brought. This precise question was presented to this court in Fremont, E. & M. V. R. Co. v. Harlin, 50 Neb. 698, and we there held that the Cause of action arose when the injury sued for occurred, and not at the time of the completion of the improvement negligently constructed
2. Another contention of the railroad company is that its embankment was properly constructed for railroad purposes; that the overflow or flood water of this river was surface water; and, if Emmert was damaged by the construction of the embankment at the place and in the manner that it did, the railroad company is not liable therefor, as it owed no duty to an adjoining proprietor as to the manner in which it should exercise its right to build its railroad and protect its property from such surface water. But is the assumption of the railroad company that the flood or overflow water of this river was surface water, correct? It must be conceded that many cases hold the flood or overflow of a natural stream is surface water. See the rule stated and the authorities collated in 24 Am. & Eng. Ency. óf Law [1st ed.], p. 903. But we are by no means satisfied with the doctrine of these cases nor with the reasoning on which they are based. Though they are in the majority, we do not think they are right. We shall not attempt to lay down a rule as a guide in all cases for determining whether waters are surface waters. Whether water is, or is not, surface water within the meaning of that term, must be determined from the peculiar facts in the case in which the question is presented. But to say that the flood or overflow water of this Nemaha river, when out of its banks, and flowing from foot-hill to foot-hill, is not a part of the river itself, not part of the natural. water course, but mere surface water, is to contradict ordinary common sense. In one sense of the word, all the water of this river was at one time, perhaps, surface water. When this water was falling upon the watershed of this stream, when it was millions of aqueous threads, flowing toward the stream covering the surface of the watershed, then it was surface’water; but when
In Crawford v. Rambo, 44 O. St. 282, the supreme court of Ohio, in discussing the question under consideration, said: “It is difficult to see upon what principle the flood waters of a river can be likened to surface water. When it is said that a river is out of its banks, no more is implied than that its volume then exceeds what it ordinarily is. Whether high or low, the entire volume at any one time constitutes the water of the river at such time; and the land over which its current flows must be regarded as its channel, so that, when swollen by rains and melting snows, it extends and flows over the bottoms along its course, that is its flood-channel, as when by drought it is reduced to its minimum, it is then in its low-water channel. Surface water is that which is diffused over the surface of the ground, derived from falling rains or melting snows and continues to be such until it reaches some well-defined channel in which it is accustomed to, and does, flow with other waters, whether derived from the surface or springs; and it then becomes a running water stream and ceases to be surface water.” To the same effect see Byrne v. Minneapolis & St. L. R. Co., 38 Minn. 214; O’Connell v. East Tennessee, V. & G. R. Co., 4 Am. R. & C. Rep. [Ga.] 449; Sullens v. Chicago, R. I. & P. R. Co., 38 N. W. Rep. [Ia.] 545; Moore v. Chicago, B. & Q. R. Co., 39 N. W. Rep. [Ia.] 390. These cases express our views and we cheerfully yield to them as authority on the subject under consideration.
But it is said that in Morrissey v. Chicago, B. & Q. R. Co., 38 Neb. 406, this court committed itself to the doctrine that ilie flood or overflow water of a natural stream was surface water. But counsel are mistaken. Ryan, 0., speaking for the court in that case used this language:
3. Another error assigned and argued by the railroad company here relates to the rule as to the measure of damages enforced by the trial court.- Emmert’s proper measure of damages under the issues made by the pleadings as to his crop of corn, was the fair value of the corn destroyed at the time of its destruction. The measure of damages for the grass pasture destroyed was the fair value of the timothy and clover constituting the pasture at the time of its destruction; and the measure of his
On the trial Emmert was asked, and over the objections of the railway company answered, questions as follows: “Q. What was the use of that meadow, — the pasture land, — that year worth to you? State in round numbers what loss it was to you, — the loss of your pasture that year.” To which he answered that he was compelled to procure other pasture that year for his stock and that he considered the loss was at least $150. “Q. In its matured state, as you had it before the fall of 1889, what was the actual value of that meadow to you?” To which he answered that it was worth $10 an acre. These questions all called for incompetent and irrelevant evidence under the issues. In his petition Emmert made no claim for any special damages, but claimed damages generally for the destruction of his corn and timothy and clover growing upon the lands on which the embankment of the railroad company held the flood-waters of the river. The question was not what the use of the meadow or the value of the meadow was to Emmert, but the question Ayas: What was the actual fair value of this crop of timothy and clover at the time it was destroyed, and Avhat Avas the fair value of the crop of corn destroyed? As to the depreciation in value of the land caused by the embankment’s arresting the flood waters of the river the petition alleged “that said plaintiff has been further damaged in the sum of $2,00.0 by reason of the depreciation of the market value of said farm in this: that in consequence of such overflow in the year 1889, and the flooding of his farm by said railroad grade holding and damming the water back upon it, and by subsequent overflows of like character, his said farm has
Reversed and remanded.