88 Neb. 732 | Neb. | 1911
The plaintiffs allege that the defendant “negligently and carelessly threw up and built an embankment across said lands in such a manner as to deprive all of said lands to the east of said embankment of drainage facilities for surface waters which had theretofore been afforded by
The. evidence discloses that the plaintiffs’ land is situated in the valley of the Nemaha river; that the defendant’s railway is between the river and the plaintiffs’ land, and is constructed upon an embankment elevated about four feet above the surface of the valley. The elevation of the land increases to the northward, and the general course of the surface water is south and southeast toward the river. A highway, also constructed upon an embankment, runs northwest and southeast immediately east of the plaintiffs’ land. The evidence tends strongly to prove that before the railway was constructed a draw or ravine extended from the Nemaha northwestward to a point within the defendant’s right of way and close to the southeast corner of the land described in the petition, and that it furnished a way for surface water which accumulated thereon. The evidence also tends to prove that the defendant constructed its grade across
In. the sixth paragraph of its charge, the court informed the jury: “If you believe from the evidence that the defendant railroad company, in -the construction of its roadbed across the land described in plaintiff’s petition, failed to provide for the passage and discharge of such waters as naturally flowed across such roadbed, or which might be reasonably expected to so flow, and that defendant’s said roadbed is so constructed as to dam the water and cause it to flow back over said land, and that plaintiff’s growing corn was injured because of the negligent construction of its said embankment, then said defendant would be liable for such damages. * * * If, on the other hand, you believe from the evidence that injury to plaintiffs’ crops * * * was not caused by the embankment upon defendant’s right of way, or that said embankment was not negligently constructed, or that said embankment did not obstruct the natural flow of surface water, * * * then the plaintiffs would not be entitled to recover in this action.”
The defendant’s argument principally concerns its contention that the damages now sued for were within the contemplation of the parties at the time it acquired its right of way, that such damages were released by the conveyance or proceedings whereby that right was secured, and that, in any event, it has acquired by prescription the right to maintain the roadbed in its present condition.
In Morrissey v. Chicago, B. & Q. R. Co., 38 Neb. 406, the general proposition that the commop law rule with respect to the right of a proprietor to control surface water is announced. In that case the plaintiff alleged, but did not prove, that the railway embankment was negligently constructed, and it is said, in effect, that the fact that the defendant’s embankment obstructed the passage of water which overflowed the plaintiff’s land did not prove negligence. In Anheuser-Busch Brewing Ass’n v. Peterson, 41 Neb. 897, it is held that every proprietor may improve his property by doing whatever is reasonably necessary for that purpose, and will not become answerable so long as he is not guilty of negligence. In that case the proprietor was negligent in leaving a depression in his lot and so situated that surface waters which accumulated therein percolated through the soil into a vault, and thence into his neighbor’s ice house, and the lot owner was held liable for damages. In Lincoln & B. H. R. Co. v. Sutherland, 44 Neb. 526, the common law' rule is recognized, but tempered by an application of the doctrine that one should so use his own property as not to unnecessarily and negligently injure another, and, because a natural drain had been obstructed by the defendant, it was held liable for damages. In City of Beatrice v. Leary, 45 Neb. 149, the defendant had interfered with a natural outlet for accumulated surface waters and was held liable. In Jacobson v. Van Boening, 48 Neb. 80, the principle is again announced.
Subsequently, in a long line of decisions, unnecessary to cite, this court say that a proprietor may improve his premises in any proper manner, although he may thereby interfere with diffused surface water, without becoming
But this court has not said that, because a railway company constructs a roadbed so that it will interfere with the flow of diffused surface water under ordinary conditions,' it is negligent, or that thereby it unnecessarily injures the coterminous proprietor. Should the company pierce its roadbed and install culverts at points where water did
We think that the court should have given instruction numbered 5, requested by the defendant. Instruction numbered 5, given by the court on its own motion, is not an incorrect definition of negligence considered as an abstract proposition, but it may have misled the jury. “A reasonable man. guided by those considerations which ordinarily regulate the conduct of human affairs,” might be ignorant of the first principles controlling railway engineering and construction, and might conclude that a free way for surface water, rather than the permanence of a roadbed, should be the controlling factor in the construction and maintenance of a railway. The jury should have been told that, in so far as the roadbed interfered with the flow of diffused surface water, it did not invade the plaintiffs’ rights and no recovery could be based thereon, and that so long as the carrier did not obstruct . the natural drains and watercourses through which the surface water complained of would flow, were the land in the state of nature, or if those drains are obstructed by the defendant, so long as it furnished a sufficient substitute therefor, it was not negligent in constructing a solid continuous roadbed for its railway.
The judgment of the district court is reversed and the cause remanded for further proceedings.
Reversed.