81 P. 1131 | Kan. | 1905
The plaintiff brought an action to recover damages alleged to have been sustained by loss of property occasioned by the defendant’s having thrown an embankment across a watercourse, upon which to lay its ties and rails and to operate its line of railroad, without having made suitable provision for the flow of the water. Verdict and judgment for plaintiff, to reverse which defendant prosecutes error.
Plaintiff in error makes two contentions: First, that plaintiff’s evidence did not prove that the ravine across which the defendant threw the embankment was a watercourse, and, therefore, the court should have sustained defendant’s demurrer. To this contention we cannot give our assent. The evidence was sufficient to carry the case to the jury. Much of it tended strongly to show that the embankment was across a watercourse, and, at least, was sufficient to justify the court in overruling the demurrer and in submitting the case to the jury.
The second contention is that the defendant was entitled to a judgment on the special findings of the jury. The jury found that the plaintiff’s land was not bottom-land; that there were no bluffs or gorges on either side of the ravine; that the banks had been plowed across in places; that in certain places vegetation grew in the bottom of the ravine; that where the ravine passed through the land of one McDonald the banks had been plowed and alfalfa sowed, and that he once raised a crop of millet in the ravine. We do not think that the defendant was entitled to judgment on these special findings notwithstanding the general verdict. Bluffs and gorges are not necessarily essential to a watercourse, nor do we think that the fact that the banks of this ravine were plowed in places, or that occasionally crops matured in parts of it, is conclusive that it was not a watercourse. The general verdict of the jury was a finding upon the evidence submitted to it, under proper instructions, that this was a watercourse, that sufficient opening had not been left to permit the water flowing therein to escape, and that by reason thereof the plaintiff was damaged.
The judgment of the court is affirmed.