127 P. 735 | Ariz. | 1912
On March 11, 1911, the supreme court of the territory of Arizona handed down its opinion in this ease, reversing and remanding same. Kroeger v. Twin Buttes R. R. Co., 13 Ariz. 348, 114 Pac. 553. Subsequently, and before the advent of statehood on February 14, 1912, that'court granted appellee’s motion for a rehearing. It is not clear upon which of the several grounds urged the order was based, but we find the case pending for our consideration, and, under such conditions, we will consider the same as though the rehearing was granted generally upon its merits as though it had never been considered and decided (3 Cyc. 219, par. 6) further than to settle the question of practice not going to the merits of the controversy.
If, upon any theory of the case made by the evidence under the pleadings, the plaintiff would have been entitled to a verdict, it was an error for the trial court to direct the verdict. This is so elementary that we do not deem it necessary to cite authorities.
An examination of the complaint discloses that plaintiff claims damages resulted to him because the defendant’s track prevented the surface water from taking its natural course, and diverting it and causing it to be “dammed back upon plaintiff’s lands,” etc., and because the “defendant company did not use due and reasonable care to drain and keep drained by good and sufficient culvert or culverts at the time it constructed its said railroad track,” etc., “and has not provided good and sufficient culverts to carry away the water from the land of the plaintiff, but has caused the water to be dammed back upon the land,” etc., and because the defendant,-having knowledge of the conformation of the country, “wrongfully, unlawfully, willfully, intending to injure and annoy plaintiff, caused divers large quantities of water to be diverted from its natural course and dammed back and forced upon the lands, etc., of the plaintiff, and that the defendant . . . did not build a sufficient culvert under its roadbed to carry away the surface flow of water, thereby causing the water to accumulate and force it back upon the lands ... of plaintiff,” and alleging, by reason of the negligence, in not providing good and sufficient culverts under its road, caused the damage, and the company knew “that it would divert the water from its natural course and dam it back upon the land . . . and cause
A motion to direct a verdict does not question the sufficiency of tbe pleadings, but raises merely tbe question of tbe legal sufficiency of the evidence to sustain a verdict against the moving party. 38 Cyc. 1565. Where but one reasonable conclusion can be drawn from tbe proof adduced, and where there is no disputed evidence on material points, a verdict should be directed. Doubts should in all cases be resolved in favor of the submission of tbe case to tbe jury. It is only where a court can find no evidence which in its deliberate and ultimate judgment is entitled to be weighed that tbe jury should be instructed in terms that there is no evidence to support tbe
The evidence is without conflict that the railroad track, including the embankment, served to east the waters on to the premises of plaintiff from which the damage to plaintiff's property resulted. Plaintiff produced testimony tending to establish the facts that the water accumulated on defendant’s right of way in great quantities at the culvert located about six hundred feet south of plaintiff’s lands, and from thence flowed northward along a ditch along the embankment and accumulated east of the embankment, rising until the water overflowed the track westward and northward of plaintiff’s dwelling-house. Also some testimony was produced by the plaintiff tending to establish the fact that the water was impeded at the culverts over the arroyos because they were not sufficient in capacity to carry the water reaching there from above, and that the company had not constructed a sufficient number of culverts to carry through and beyond its embankment the surface .water reasonably expected to descend from the area draining that way. Defendant does not offer conflicting testimony on any feature of the above conditions except as to the sufficiency of the culverts and the quantity of surface water reasonably expected to reach the track. Upon the last question there developed a sharp conflict in the testimony, and this seems to have been the point most bitterly contested at the trial.
It was not insisted at the trial that the surface waters were repelled from defendant’s lands by a wall or embankment at the border of its property and caused to flow onto the adjacent lands, but it is unquestioned that the roadbed embankment held the water back. It is a reasonable inference from all the testimony that this roadbed was necessary in all particulars to the proper enjoyment of defendant’s franchise and property, and was not constructed for the purpose of preventing the flow of the surface water upon its right of way. It is a fair and legitimate inference that the jury would have been justified in drawing from the evidence that the surface water
It is in effect agreed by the counsel that the trial court took the view that this cause was controlled by Walker v. New Mex. & S. P. R. Co., 165 U. S. 593, 41 L. Ed. 837, 17 Sup. Ct. Rep. 421. In that ease it was alleged in the declaration “that the defendant obstructed the natural and artificial watercourses by which the water from the north and west of plaintiff’s property, and from the Socorro and Magdalena Mountains, in their natural flow and fall, ‘passed over the lands of the plaintiff and other lands and emptied into the Rio Grande.” The court propounds this question: “Does a lower land owner by erecting embankments or otherwise preventing the flow of surface water onto his premises render himself
A very clear distinction exists between the Walker case and! the case at bar. In that case the surface water “in its natural flow and fall passed over plaintiff’s lands” and became obstructed by the embankment, while in this case a fair presumption can be drawn that the surface waters in their natural flow passed over other lands and accumulated on defendant’s lands—right of way—and, following the embankment, were east from defendant’s lower lands onto the plaintiff’s, higher lands. The Walker case was dealing with' surface water flowing from plaintiff’s lands onto defendant’s lands,, while in this case a fair inference, drawn from the facts in. evidence, would justify a finding that we have to deal with surface water east back from off defendant’s lands onto the plaintiff’s. The rule applied in the Walker case would, apply in this case if the plaintiff had constructed a sufficient walk along and around his premises so as to repel the water forming along the east side of defendant’s railroad track, and by
From reason and the authorities cited, this general rule cannot be questioned. We have seen that there is some evidence supporting the theory that the defendant caused the surface water to collect and accumulate east of its road embankment at a point distant from plaintiff’s lands, and its roadbed with a. ditch directly cast the water upon plaintiff’s premises which he was under no legal servitude to receive from the lower premises. Therefore the court erred in directing the verdict for the defendant in this case. It was. the duty of the court to submit the cause to the jury under proper instructions and permit the jury to draw such proper inferences as the evidence will warrant.
The judgment is reversed, and the cause remanded to the superior court of Pima county for proper proceedings according to law.
FRANKLIN, C. J., and ROSS, J., concur.
NOTE.—As to railroad’s liability for nuisance by causing overflow, accumulation, or pollution of water, see note in 32 L. R. A., N. S., 376.
As to liability of railroad for conducting surface water through embankment and on to the property of an adjoining owner, see note in 12 L. R. A., N. S., 680.
As to the right of one land owner to accelerate or diminish the flow of water to or from the premises of another, see note in 85 Am. St. Rep. 707.