50 Neb. 698 | Neb. | 1897
Charles Harlin brought this suit in the district court of Saunders county against the Fremont, Elkhorn & Missouri Valley Railroad Company, hereinafter called the railroad company, to recover damages which he alleged he had sustained by reason of the destruction of certain of his crops, certain trees growing upon his land, and by-reason of the deposit on his land of quantities of debris,, all caused by the negligence of said railroad company in constructing certain ditches on its right of way in such a manner as to cause the waste and surface waters to be
Hoeffditz v. Southern P. R. Co., 18 Atl. Rep. [Pa.], 125. In this case Hoeffditz, for a valuable consideration, released and discharged a railroad company and its successors from all suits, claims, demands, and damages whatever by reason of its entry upon his land and appropriating a part thereof toAvards the construction of its railroad and Avorks connected therewith. At the time of executing the release the railroad company had erected on the land acquired from Hoeffditz an embankment, in which was a culvert. Subsequently Hoeffditz sued the railway company for damages caused by the water which passed through this culvert; and the court held that the release Avas a bar to the action.
üpdegrove v. Pennsylvania S. V. R. Co., 19 Atl. Rep. [Pa.], 283, is very much like the case at bar. Updegrove, for a consideration, deeded the railway company the right of way over his land, and released it from all claims for damages by reason of the taking and using of the lands for its railroad, or by reason of the construction and maintenance of its road over said land. The release appears to have been executed before the road was built, and the court held that this release barred Updegrove’s action against the railroad company for damages caused by an overflow of water which resulted from the construction of a ditch and culvert on the right of way. The court based its decision upon the proposition that the damages sued for Avere in contemplation of the parties at the time of the execution of the right- of way deed, in other words, that the damages sued for entered into and formed a part of the consideration paid by the railroad company for the right of way.
In Radke v. Minneapolis & St. L. R. Co., 43 N. W. Rep. [Minn.], 6, Radke sued the railroad company for damages to his land caused, as he alleged, by the negligent construction of its railroad over or near his land. The neg
In Chicago, R. I. & P. R. Co. v. Smith, 111 Ill., 363, the owner of certain land conveyed to the railroad company a right of way across the same. The deed recited, “For the purpose of constructing a railroad, and for all purposes connected with the construction and use of said railroad,” and the court held that the right of way deed was a bar to an action by the owner’s grantee against the railroad company for damages caused to his property by its engines throwing smoke, cinders, ashes, and sparks of fire thereon, and by the shaking of the house on said .premises. But it is to be observed that the damages claimed resulted from the usual and ordinary operation of the road. Smith did not claim that the damages resulted from the negligent operation of the road; and the case rests upon the principle that when anything is granted, all the means to attain it and all the fruits and effects of it are granted also; and the court correctly held that the shaking of the house and the smoke, cinders,. and ashes thrown by passing engines were necessarily incident to and inseparable from the operation of the
In St. Louis, V. & T. H. R. Co. v. Hurst, 14 Ill. App., 419, it seems that the railroad company constructed its road over the land of Hurst. At or before this time, for a consideration, Hurst conveyed to the railroad company a right of way deed over his lands, and in this deed he released and relinquished all claims for damages by reason of the location, completion, and construction of the road. Years after the road had been completed and in operation the railroad opened a ditch by the side of its track, and Hurst claimed that the construction of this ditch changed the natural channel and flow of water and caused the same to flow upon his land, to his damage, for which he brought suit. On the trial the railroad company offered the right of way deed in evidence. The trial court excluded it and on appeal its action in this respect was reversed. The court seems to have placed its ruling upon the ground that the railroad company was entitled to have the jury say as a matter of fact whether the construction of the ditch complained of was a necessary act in the proper maintenance of the road, and held that if the construction of the ditch was necessary to the maintenance and operation of the road, that the. release was a bar to the action; and said that before Hurst could recover damages he must make it appear that the acts of the railroad company amounted to a departure from or were not embraced within the purposes for which the release was made. This case is an authority so far as it goes against the contention in support of which it is cited.
Of these authorities the cases from Pennsylvania and Minnesota only, we think, can be said to sustain the
In Delaware, L. & W. R. Co. v. Salmon, 39 N. J. Law, 299, it was held: “A conveyance of land for railroad purposes or an assessment of the value of lands taken and damages under proceedings to condemn only bars the recovery of such damages as naturally and necessarily arise from the use-of the premises for the authorized purpose; and will not bar the recovery of damages for injuries arising from an unskillful or improper construction or negligence in operating the road. For such damages the remedy by action remains notwithstanding the conveyance or condemnation.”
In King v. Iowa M. R. Co., 34 Ia., 458, it was held that in a proceeding to appropriate land for a right of way of a railroad already constructed, evidence of damages result
In Stodghill v. Chicago, B. & Q. R. Co., 43 Ia., 26, Stodghill sued the railroad company for damages for diverting a stream of water from its natural course, thus preventing it from flowing upon his land and depriving him of the use of the stream. The railroad company interposed as a defense that before it built its road over Stodghill’s land it acquired from him, for a valuable consideration, the right of way; that its right of way passed over a creek, and that when it constructed its road it built a bridge over this creek; that some eight years afterward, on account of an increase of business and for the safety of travel, it took out the bridge and built a fill across the creek. The supreme court said: “As it is not claimed by appellant that greater rights were acquired by the plaintiff’s deed than would have been acquired by proceedings in condemnation, we shall assume for the purposes of this opinion that they were the same. The question, then, which we are called upon to decide is this: Are the damages resulting to the land owner from the diversion of a natural stream of water, where such diversion is required by good railroading and a reasonably prudent construction of the road-bed, to be regarded as having-entered into and been covered by the condemnation and appraisal?” and held that the right of way deed was not a bar to the action.
Hunt v. Iowa C. R. Co., 52 N. W. Rep. [Ia.], 668, is a case almost identical with the one at bar. Hunt sued the railroad company for damages sustained by him, as he alleged, by reason of its negligently constructing a ditch on its right of way, whereby surface waters destroyed his crops and deposited debris upon certain of his land and depreciated its value. The ditch complained of was constructed at the time the road was built across Hunt’s
The district court did not err in excluding the right of way deed from the jury.
City of North Vernon v. Voegler, 2 N. E. Rep. [Ind.], 821. In that case the city, by improving or grading one of its streets, changed the flow of the surface water so as to gather it into a channel and pour it upon Yoegler’s lots. For this he sued the city for damages, alleging that its negligent grading of the street had injured and depreciated his real estate. He recovered a judgment. Bub
Another case cited in support of the contention under consideration is Baldwin v. Oskaloosa Gas Light Co., 10 N. W. Rep. [Ia.], 317. There Baldwin sued the gas light company for damages for maintaining its gas works in the immediate vicinity of his premises. The jury found that the gas works were permanent and the court held that this was equivalent to a finding that the injury was permanent, and that, therefore, Baldwin’s cause of action accrued when the gas works were first located and that consequently his action was barred by the statute of limitations. To the same effect is Stodghill v. Chicago, B. & Q. R. Co., 5 N. W. Rep. [Ia.], 495.
Another case cited by counsel is Chicago & A. R. Co. v. Maher, 91 Ill., 312. In that case the railroad, company placed a protection to a drawbridge in a river and thus permanently depreciated the value of an adjoining lot. The owner of the lot subsequently conveyed it to Maher and she sued the railroad company for damages which the real estate had sustained by reason of the improvement which the railroad company had made adjoining her lot. But the court held that the injury caused to the real estate was permanent in its character, and the cause of action sued for arose when the improvement was first constructed. In other words, that the plaintiff’s cause of action was the amount that her lot had been depreciated in value by reason of the improvement placed in the river adjoining it by the railroad company, and that this depreciation took place, this injury and this damage
One of the defenses interposed in Hunt v. Iowa C. R. Co., supra, was the statute of limitations. It will be remembered, in that case Hunt claimed damages because of the negligent construction by the railroad company of certain ditches on its right of way, whereby the surface water overflowed his land and destroyed his crops. The ditches were constructed more than five years before the action was brought. The court said: “It is clear that plaintiff herein could not have maintained an action until some actual injury was caused to her by diversion of the water by defendant. There is here no claim of any such injury until 1888 — less than two years prior to the commencement of this action. True, the evidence shows various overflows of plaintiff’s land prior to that, but if they caused any injury, no damage is claimed for it.”
In St. Louis, I. M. & S. R. Co. v. Biggs, 12 S. W. Rep. [Ark.], 331, the court held that where a railroad company constructs its road-bed so that at times it causes overflow to adjoining lands, there may be as many recoveries as there are successive injuries, and the statute of limitations begins to run on the happening of the injury complained of, and not from the construction of the railway.
In Austin & N. W. R. Co. v. Anderson, 15 S. W. Rep. [Tex.], 484, it was said that in an action against a railroad company for damages caused by occasional overflows of surface water, which has been diverted from its natural channel by the construction of its road, the statute
The court did not err in refusing to give the instruction requested.
In McCleneghan v. Omaha & R. V. R. Co., 25 Neb., 523, this court said: “A railroad company must construct its. road not only with reference to the safety of the traveling public, but also with reference to the rights of adjacent land OAvners.” The following cases rest on the same principle: Anheuser-Busch Brewing Association v. Peterson, 41 Neb., 897; Lincoln & B. H. R. Co. v. Sutherland, 44 Neb., 526; Fremont, E. & M. V. R. Co. v. Marley, 25 Neb., 138; Jacobson v. Van Boening, 48 Neb., 80.
But it is said in support of the contention under consideration that this court has ruled, in Morrissey v. Chicago, B. & Q. R. Co., 38 Neb., 406, that if an improvement made by a railvay company in the construction, operation, or maintenance of its road is properly made for railroad purposes, then if another sustain damages by reason of such improvement or the manner in which it is constructed or maintained he is without remedy. Once more Ave disclaim having ever consciously so held,- and once more call attention to the fact that Ave do not so understand the Morrissey Case. As we said in Jacobson v. Van Boening, supra, an examination of the Morrissey Case discloses that Ave had in view the fact that there was' neither pleading nor proof that the railroad embankment which caused the injury sued for in that action had been unnecessarily or negligently constructed; that is, the evidence did not
Reversed and remanded.