51 Kan. 737 | Kan. | 1893
This was an action by Alois Steck to recover damages from the Chicago, Kansas & Nebraska Railway Company, resulting from the alleged obstruction of a watercourse, which dammed the waters and overflowed his cultivated land and destroyed crops of the value of $1,000. Prior to 1886, Steck was the owner of a tract of bottom land extending along Mill creek, and in that year he sold a strip of the same 100 feet wide to the railway company, upon which to build its railroad, and conveyed the fee-simple title by a deed of general warranty. In the receipt for the money paid for the land, the company was released from “all damages sustained or to be sustained by me and tenants by reason of the construction and operation of the railroad of said company in a lawful manner through said county of Wabaunsee.” During the year 1887, the railroad was built upon the land purchased, and it is alleged that in the construction an embankment was made, without culverts or other means of escape for the accumulation of surface water, and that, in 1889, an overflow occurred which occasioned the damages of which complaint is made. It appears that Steck’s farm is situated on the south side of Mill creek, and drains toward that stream. The railroad runs nearly east and west, and far enough from Mill creek to avoid the broken land and ravines which lead into that stream. South of the railroad track was smooth bottom land, without any gorges, cuts, or ravines. Further south was a range of hills, on the side of which were some ravines and gulches leading to the bottom land below. There were some underground ditches through the bottom, which had been constructed for the purpose of drainage, that terminated under the railroad track. In case of a heavy fall of rain, the waters flowed from the hills over the bottom land, and, on the occasion mentioned, the bottom land was overflowed and the crops injured. On these facts, the court below found that there was a liability in favor of Steck, and awarded him judgment in the sum of $288.50.
“There must be a channel, a bed to the stream, and not merely low land, or a depression in the prairie over which water flows. It matters not what the width or depth may be, a watercourse implies a distinct channel, a way cut and kept open by running water; a passage whose appearance, different from that of the adjacent land, discloses to every eye, on a mere casual glance, the bed of a constant or frequent stream.” (Gibbs v. Williams, 25 Kas. 214.)
It has also been held that the mere
“Fact that the owner of one tract of land raises an embankment upon it which prevents the surface water falling and running upon the land of an adjoining owner from running off said land, and causes it to accumulate thereon to its damage, gives to the latter no cause of action against the former.” (A. T. & S. F. Rld. Co. v. Hammer, 22 Kas. 763. See, also, C. K. & W. Rld. Co. v. Morrow, 42 Kas. 339; K. C. & E. Rld. Co. v. Riley, supra; O’Connor v. Railway Co., 52 Wis., 526; Johnson v. Railroad Co., 80 id. 641; Jones v. Railway Co., 18 Mo. App. 251.)
The testimony of the witnesses produced by Steck clearly shows that, although there were depressions in the bottom
The defendant in error relies upon Palmer v. Waddell, 22 Kas. 352, but that case fails to sustain his claim. There the surface water which flowed from a hilly region and accumulated on the low lands passed through a gorge or ravine, and the flow through this gorge was such as to make a defined channel, which possessed the attributes of a natural watercourse. That has always been regarded as a border case, and the court has since refused to extend it. In this case the testimony fails to show any natural watercourse south.of the railroad, and which is obstructed by it; and hence, under the authorities cited, no right of recovery was established.
The judgment of the district court will be reversed.