5 Dakota 1 | Supreme Court Of The Territory Of Dakota | 1888
This is an action brought by the plaintiffs to recover damages for injury to their crops during the years 1881-82, by overflow of surface water, alleged to have been caused by the negligent construction of the road-bed, ditches, and culverts of the defendant railway company. The complaint substantially alleges that:
1. Defendant’s railroad runs in a south-easterly and northwesterly direction upon a road-bed and embankment raised about two feet above the surrounding country.
2. That under its road-bed it constructed a culvert near to plaintiffs’ land, which culvert connected with the ditch which was at the' same time constructed by the defendant, and which extended along the west side of the embankment, and parallel with it, for several miles.
3. That prior to such construction the water falling or coming upon the land lying west, south-west, and north-west of plaintiffs’ land for several miles ran its natural course towards the north-east, and away from plaintiffs’ land, into coulees and depressions, and thence into the Eed river, without coming on or injuring plaintiffs’ land.
4. That defendant carelessly and negligently constructed said embankment, culvert, and ditch, and thereby caused large quantities of water to become dammed up on the west side of said embankment, and collected in said ditch, and diverted said water from its ordinary course, and caused it to be conducted through said culvert over and upon plaintiffs’ land in large and unusual quantities.
5. That defendant also carelessly and negligently constructed a ditch on the east side of, and parallel to, its road-bed for several miles, in a south-easterly direction, and thereby caused large quantities of water from defendant’s and other surrounding lands to be conducted and diverted through said ditch upon plaintiffs’ land in large and unusual quantities.
6. That by reason of such negligent and improper construction plaintiffs’ land was overflowed, and their crops destroyed.
The gist of the action is the negligent construction of the
The answer puts in issue the allegations of the complaint, ¡and affirmatively alleges the proper construction of the road-bed, its embankments, ditches, and culverts.
The defendant before the trial moved for judgment upon the •pleadings, and at the close of the case asked the court to direct a verdict for the defendant, which motion and request •were denied, and exceptions duly taken. The defendant also ¡asked certain instructions of the court to the jury, which were •refused, to which exceptions were taken, and also numerous exceptions to the charge given to the jury by the court upon its -own motion, all of which.will be noticed more fully hereafter. Numerous other exceptions were taken at the trial, and were urged in this court, but will not be noticed in this opinion, and ¡are not necessary to be considered in the view we have taken •of this case.
A careful examination of the pleadings and evidence shows that the railroad ran in a south-easterly and north-westerly direction, intercepting the natural flow of surface water, which ■.ran in a north-easterly direction, diagonally, or nearly at right ■angles; that the entire surface of the country is one extended plain or level, with no elevations or depressions of more than -a few feet or inches; that there were no natural water-courses ■on or near the premises in controversy, or within reach of said right of way, into which such surface water could be drained; •-that the depressions, or coulees, through which the surface water «reached, and was drained into, the Red river, were lower levels >of the prairie, or depressions of the surface, having no defined ■banks or bed, but were filled and covered with the continuous grass of the prairie, though sometimes such grass was of the -coarser and ranker variety than that which grew upon adjacent lands; and such depressions were usually dry, like the other ¡.portions of the prairie, except in times of high water or melting snows.
That the plaintiff, for a valuable consideration, conveyed to •vthe defendant the right of way, for railway purposes, across the
While the gist of the action was the negligent construction, of the embankment, ditches, and culvert in question, it seems-to have been clearly established by the evidence, and to liave-been practically admitted at the trial, and it was admitted in this court, that the embankments, etc., complained of were properly constructed for railroad purposes. Counsel for respondents in his brief commences by saying: “It is not claimed by respondents that the railroad company did not construct a proper embankment, ditches, and culverts for railroad purposes;” but respondents claimed that the defendant should have so constructed its road that the surface water would not have flowed upon the premises in greater quantities, or in a different manner, from what it naturally was wont to flow, and that if by the construction of its embankments, ditches, and culverts, though, constructed in the usual and ordinary manner, larger quantities, of surface water were permitted to accumulate, and were discharged upon plaintiffs’ land in an unusual manner, whereby they sustained injury, the defendant was liable in an action for damages for such injury.
The action was commenced as one of negligence for the carelessly and negligently doing of a lawful act, — the careless and negligent construction of its embankment, ditches, and culverts,, which it had a lawful right to construct in a careful and proper-manner; it ends in an action of trespass, or the doing of an unlawful act in an unlawful manner.
The theory upon which the action was commenced, and the. theory upon which it was tried, are antagonistic, and cannot both be maintained upon the same state of facts. The act of constructing the embankment, etc., cannot be wrong and right, at the same time. It was, or it was not, negligently constructed; and, if it was not negligently constructed, the plaintiffs’ cause of action failed. In the court below the testimony on both sides-was to the effect that defendant’s railroad was constructed in the usual and customary manner; that the excavations at the;
John D. White, an engineer of experience, called by the plaintiffs, testified as follows: “Question. Mr. White, what is the elevation of this road-bed through that country ? Answer. It is about two feet. It varies a little either side of that. And the road-bed conforms, in a general way, to the topography of the country. Q. You say you have had some experience in railroad building? A. Yes, sir; I have had a little experience in that kind of work. Part of that was in this country. I located a little line here. Q. Is this railroad, constructed in the usual and customary manner of constructing railroads in open prairie countries ? A. Yes, sir. Q. Properly constructed, is it not ? A. It is not constructed exactly as I would construct a railroad if I was going to do it, but it is constructed as is generally done in the country. The road-bed is the same as railroad beds are generally made, — by excavating at the side of the track to get earth enough to make the road-bed. Q. Is not that the best method of doing? A. That is the only method of doing that I know of, in regard to getting an embankment. Q. And these culverts are such culverts as are usually and customarily put into railroads? A. Yes, sir. Q. To allow an escape of water? A. Well, I think it is generally not to look for so great an amount of water, — just to provide communication between different ditches, if there is a drainage level between one side and the other, and let all the water go in that direction. The culverts are the ordinary culverts that are put into all the railroads. They are properly constructed. Q. And there is the usual number of culverts in this distance that there would ordinarily be in a low, flat country, are there not? A. Yes, sir; there are as many as are customary. Q. And they are made to conform to the topography of the country, are they not ? They are put in where the natural flow of water would be to the lowestpoints ? A. They are; yes, sir; in regard to these ditches.
And the testimony of the other witnesses and experts called by the plaintiffs and defendant were substantially to the same effect. The evidence also unmistakably shows that the excavations at the sides of the railroad, and upon the defendant’s right of way, were not ditches constructed to carry off the surface water, but were only the usual and ordinary cuts and excavations made to obtain the earth of which the embankments were constructed, and that they were, as is usually the case, deeper at or near the depressions of the surface, and of less depth at or near the elevations. And the contention at the argument in this court was not, as alleged in the complaint, that the defendant,had constructed a ditch along its right of way, but that it should have done so, and thereby have carried off the surplus water to a distant coulee, instead of collecting it in reservoirs, and discharging it by culverts upon the plaintiffs’ land.
At the close of the testimony the defendant asked the court
The theory upon which the case was tried and submitted to the jury, and upon which it is sought to sustain the judgment here, is, as already suggested, that although the road-bed was constructed in the usual and ordinary manner, and although its embankment, ditches, and culverts complained of were constructed with the care and skill usual and customary in the construction of other roads, yet because the surface water naturally flowing upon plaintiff’s land was interrupted and disturbed thereby, and they suffered injury therefrom, the defendant is liable in an action of tort for damages; that although defendant had a right to do what it did, and although the act complained of was done in the usual and ordinary manner, with the usual
It is not necessary to follow counsel into the learning of the books, or the niceties of discussion found in the decisions of the courts, to determine whether the doctrine of the civil or common law is most adapted to our western habits, character, and civilization. If the plaintiffs can recover at all upon the case made, and upon the theory contended for, they can recover irrespective of the doctrine of the common or civil law. The defendant could not, by the rule of either the civil or common law, collect large bodies of surface water upon its own premises by artificial means, and eject the same by unnatural streams, and in unusual quantities, upon the land of another, without a license or authority so to do. And this brings us to the nub of this case, the pivotal point upon which the plaintiffs’ argument rests, if they may be permitted to maintain this action upon the theory now advanced, and under the pleadings as they yet stand.
Conceding the road, with its embankments, ditches, and culverts, to have been constructed with the ordinary skill and care generally bestowed upon such work in the construction of other roads, and that it was authorized to build and construct its road across plaintiffs’ premises by their express grant, can they maintain this action for damages for one of the injuries sustained by reason of such construction? It will be conceded that the company obtained, under their deed from plaintiffs, all the rights which it would have obtained by condemnation under the statute. This has been uniformly held by the courts, and the doctrine is announced by the text-writers upon this subject as follows: “The same effect is given to a deed, made to the company by a land-owner, of so much land as the company would otherwise be entitled to condemn for the erection of its works. The consideration of the deed is deemed to stand in place of the damages which would have been assessed by commissioners acting under the statute.” 1 Thomp. Neg. 570. And the question now occurs, what rights did the defendant
What would be a proper construction of a railroad, and what would be a proper construction of its embankment, ditches, and ■culverts? Would it not be a fair standard for commissioners and jurors, in estimating the damages likely to accrue to adjacent land-owners from the construction of the railroad across their lands, to bring to their aid their knowledge and experience .as to how other roads of a similar character were usually constructed, and what would be the damages which would ordinarily and naturally occur from such construction? And, in absence of any special profile of the road submitted for their consideration, would they not act properly in presuming that the road would be constructed in the usual and ordinary manner, ■and that the ordinary and usual damages would result ? And if the road were constructed in the usual and ordinary manner contemplated by the parties to the contract for the right of way, or by the commissioners in the proceedings for condemnation, would it not be constructed in a proper manner? Can .a party be said to be negligent in doing a lawful act in a proper manner? These questions contain their own answers, and •do not admit of argument. If, as plaintiffs admit, “it is not claimed that the railroad company did not construct a proper ■embankment, ditches, and culverts for railroad purposes,” then the defendant was not negligent in their construction, and the
It has now become the settled law of this country and England that the right of way obtained under their charter permits railroads to use steam-engines in propelling their trains; and that if, in the necessary use of Are for the production of steam
It is true that the legislature in granting the right to construct these great highways and arteries of commerce, and to maintain and operate the same by dangerous agencies, imposes upon the corporations a degree of skill and care in their construction and operation commensurate with the nature of the work and the agencies employed; but, when a compensation is awarded for consequent damages, the presumption is that it is in payment of the proximate injury contemplated and reasonably expected to result therefrom, and the degree of care and skill required of the company and its agents will be graduated by the character of the work and the agent employed. If the agent employed is fire, the highest degree of skill and care in its management and control is expected and demanded to protect the property adjacent from injury or destruction. Yet, as we have seen in such cases, no greater or higher degree of care or skill is demanded than that ordinarily used and employed by other roads of like character and construction; and that to require more would be to exact of the particular company extraordinary skill and care. Would it be contended that if defendant had, in constructing its road, cut down and removed from its right of way large and overhanging trees, whereby the plaintiffs became injuriously affected by sunlight and winds, that the company would be subject to this action for damages? Would it be contended, if the defendant, in the construction of its road in the usual manner, constructed across some ravine so high an embankment that thereby great quantities of snow were blown by the wind,
But it is contended that compensation for the right of way included only the ordinary damages that would arise from the construction of the road across the premises granted or condemned; that it does not, and is not intended to, include damages extraordinary; or, as the books say, it includes only “damages reasonably expected to flow from the construction and maintenance of the work;” and therefore that the action for extraordinary damages will lie against the owner of the right of way, notwithstanding the grant or award of condemnation. And the charge of the court seems to have proceeded upon this theory. The jury were instructed that, in case of acquiescence, etc., by plaintiffs, “they could not recover for the ordinary damage arising therefrom.” The learned judge, however, proceeds to say: “But the damage caused to 'the plaintiffs’ land, if any, by the discharge of large and unusual quantities of water from other lands, if such discharge occurred, would not be ordinary damage arising from the proper construction of such embankment.” This instruction is not only open to the objection that it trenches upon the province of the jury in determining by the court what it is their duty to determine, to-wit, what was not ordinary damage, but it gave the jury to infer that, while the defendant might not be liable for ordinary, it would be liable for extraordinary damage, caused by the construction of its road and embankments
And this is in accordance with the American doctrine as announced by the supreme courts of the various states. The American cases lay down the doctrine that, for damages accruing from extraordinary floods, or other causes that may be attributed to the act of God, or which cannot ordinarily be foreseen or prevented, there can be no liability. See China v. Southwick, 12 Me. 238; Bell v. McClintock, 9 Watts, 119; Bridge Co. v. Navigation Co., 4 Rawle, 9; Everett v. Tunnel Co., 23 Cal. 225; Hoffman v. Water Co., 10 Cal. 413; Wolf v. Water Co., Id.
And the American doctrine is very well illustrated in China y. Southwick, cited supra, where A. erected a dam at the outlet of a pond, and thereby raised a head of water, but not so high as to overflow or injure a bridge at the head of the pond, belonging to B. A number of years afterwards, in consequence of great rains and a violent wind, the waters were thrown upon the bridge, and it was destroyed. It was held that A. was not liable to pay damages to B., for, “if there had been no dam, the injury might not have happened; but the defendant had a right to erect it, and that without being responsible for remote and unforeseen consequences.” And the doctrine announced applies with still greater force to the facts of this case, in which it appears that the obnoxious ditches were not constructed for holding or conveying water, but were the natural and necessary excavations caused by the erection of the embankments required in the construction of defendant’s road-bed.
It is in evidence by plaintiffs’ own engineers that they knew of no other .way of constructing railroads; that a trestle-work would be impracticable; and that these excavations were the usual and necessary ones caused in the erection of the embankment in question. But, suppose they had been constructed as water ditches for the carrying off the surplus water necessary for the protection of defendant’s road-bed, would defendant have been required to have guarded against more than ordinary and usual surface flow? Would not a flood of the dimension and character proved in the case at bar have been vis major, or such unforeseen consequence as to avoid liability ?
But we are not obliged to travel beyond the facts of the present case to speculate upon the rules of law governing the construction of ditches and reservoirs constructed upon the right of way for the convenience of the company or the protection of the road. The case at bar shows that the road-bed was constructed
It may not be uninteresting, in this discussion, to glance at the authorities upon the question of what damages are included in the award of commissioners arising from the appropriation of the right of way by railroad companies. The case of Walker v. Railroad Co., 103 Mass. 10, is a leading case. The jury appointed upon petition to the county commissioners, under the Massachusetts statute, had allowed for damages caused by defendant’s obstructing the surface water by means of its embankments, and thereby turning it upon plaintiff’s land. The defendant company claimed this was not a proper element of damages for the consideration of the jury, but the supreme court on appeal, holding it a proper matter for their consideration, says: “The injury from surface water turned back by the embankment of the railroad, and made to flow upon the petitioner’s land, or prevented from escaping therefrom in the usual mode, was proper for the consideration of the jury in estimating his damages. Where there is a public, or even, as'it would seem, a private, right or easement of drainage, it is the duty of the railroad cor
But it is contended that, although the injury was one that ■may have been reasonably contemplated by the parties in the purchase of the right of way, that it did not come within such .grant, and was not compensated for by the consideration of the .grant, because it was the duty of the defendant to have guarded
Upon the case as made the plaintiffs had no cause of action, and the defendant’s request to direct the verdict should have been granted. The judgment is reversed, and a new trial ordered .