55 Kan. 205 | Kan. | 1895
In his petition Keys averred that, ever since the settlement of the section of the country in which the farm is situate, there has been a distinct natural water-course running in an easterly and north - easterly direction through his land, which conducted large quantities of water from the hills lying west and northwest of his land, and that prior to the building of the railroad the water passed freely and unobstruct-edly eastwardly from plaintiff’s land along the watercourse, but since the building of the railroad, and owing to the incomplete, inadequate and improperly-located openings for the passage of water coming down the natural water-course across the right-of-way of the railway company, and beneath its tracks, the water had accumulated and remained in great quantities over the plaintiff’s land, damaging and destroying his crops, for which he asked judgment in the sum of $3,999.
As the recovery of the plaintiff below was largely based upon the failure of the railway company to provide openings for the flow of surplus water, it cannot be sustained.
The judgment of the district court will be reversed, and the cause remanded for another trial.