| Kan. | Jul 15, 1893
This was an action in the court below by Samuel H. Renfro against the Missouri Pacific Railway Company to recover damages to his premises resulting from surface water. Before the damages occurred, a right-of-way was properly condemned for the railway company through his premises, and the damages assessed for the construction of the road were received by him. In his petition, Renfro alleged that the railway was negligently and unskillfully constructed, with deep ditches upon the sides thereof, for a mile or more, and that a narrow and insufficient- culvert was- constructed under the road on his land, so that the surface water collected and conducted down on his land was unable to pass through the same. Upon the trial, the jury found that the road was improperly and negligently constructed, as follows:
“By digging long and continuous ditches along said railroad and tearing down embankment at hedge north of plaintiff’s premises, thereby conducting a large volume of water onto said premises that would not otherwise run there, thereby cutting a ditch through plaintiff’s land and otherwise damaging it. Also, by constructing a culvert so small through railroad grade that the water could not run off without flooding plaintiff’s land west of railroad.”
The examination of the evidence, however, shows that there was no evidence introduced to sustain the finding that the railroad was not properly constructed. The railway company had a right to construct and maintain its road, and all of its acts were done upon its right-of-way, for which Renfro received compensation. The “long and continuous ditches” referred to in the findings were caused by taking dirt from either side of the line of the road for the purpose of constructing a roadbed. The plaintiff testified:
“Ques. This road is now level — about with the ground? Ans. Graded up.
“Q,. This road is built through here, and there are borrow-pits on both sides of it where they took out the dirt to make the grade? A. Yes, sir.
The “tearing down of the embankment at the hedge north of Eenfro’s premises” was not complained of in the petition, and, even if it were, it appears from the evidence that the railway could not have been constructed without cutting through the hedge, and, therefore, that was not an improper •or negligent act. The plaintiff testified:
“Q,ues. Now, the hedgerow crosses the railroad here? Ans. Yes, sir.
“Q,. And in making that right-of-way they cut a place through the hedgerow? A. Yes, sir.
“Q,. And the water turned into that ditch? A. Yes, sir.
“ Q. They could n’t very well build a road without doing that, could they? A. No, sir.
“Q,. They could n’t at all? A. No, sir; but I do n’t consider that I am responsible for that.”
In that case, Brewjer, J., speaking for the court, remarked :
“No exception is shown to the general rule by the fact that the party raising the embankment is a railroad corporation, and the embankment raised upon its right-of-way for use as a railroad track, nor by the fact that a culvert could have
There is a conflict in the decisions of the different states upon the subject of surface water, because some follow the rule of the civil law and others the rule of the common law. The rule of the common law has already been adopted in this state, and under that rule one landowner has the right to use and improve his own land for the purpose for which similar land is ordinarily used; and he may build upon it, or raise or lower its surface, even though the effect may be to prevent surface water, which before flowed upon it, from going upon it, or to draw from adjoining land surface water which would otherwise remain there, or to shed surface water over land on which it would not otherwise go.
In the late case of C. K. & N. Rly. Co. v. Steck, 51 Kan. 737" court="Kan." date_filed="1893-07-15" href="https://app.midpage.ai/document/chicago-kansas--nebraska-railway-co-v-steck-7889311?utm_source=webapp" opinion_id="7889311">51 Kas. 737, the authorities concerning the nonliability for damages resulting from surface water are collated. In that case it was held that
“An owner of land who builds an embankment thereon which obstructs the flow of surface water that falls and accumulates upon his neighbor’s land does not become liable for the injury arising therefrom, unless the passageway through which it flows is such as to constitute a water course.”
Jordan v. Railway Co., 43 N. W. Rep. (Minn.) 849, is very similar to the one at bar. It was observed by the chief justice:
(See, also, Johnson v. C. St. P. M. & O. Rly. Co., 50 N. W. Rep. [Wis.] 771; Lessard v. Stram, 62 Wis. 112" court="Wis." date_filed="1885-01-13" href="https://app.midpage.ai/document/lessard-v-stram-6604601?utm_source=webapp" opinion_id="6604601">62 Wis. 112; Abbott v. K. C. St. J. & C. B. Rly. Co., 83 Mo. 271" court="Mo." date_filed="1884-10-15" href="https://app.midpage.ai/document/abbott-v-kansas-city-st-joseph--council-bluffs-railroad-8008036?utm_source=webapp" opinion_id="8008036">83 Mo. 271; Henderson v. City of Minneapolis, 20 N. W. Rep. [Minn.] 322; Hanlin v. C. & N. W. Rly. Co., 61 Wis. 515" court="Wis." date_filed="1884-11-25" href="https://app.midpage.ai/document/hanlin-v-chicago--northwestern-railway-co-6604550?utm_source=webapp" opinion_id="6604550">61 Wis. 515; Ang. Water Courses, 7th ed. 118-121; Hannaher v. St. P. M. & M. Rly. Co., 37 N. W. Rep. [Dak.] 717.) In the latter case it was remarked:
“ If, by the usual and ordinary construction of its road, the surface of the earth was necessarily changed, and the currents of the surface water were interrupted and diverted, it was one of those ordinary incidents of railroad construction which might have been reasonably expected to have resulted from such work, and one that plaintiffs themselves were bound to have guarded against and to have used such precautions as were in their power to remedy. Any other rule would require railroad companies in level countries to build their roads upon elevated trestles, or encounter the hazard of some disturbance of surface elements.”
If the petition had not alleged that the railway was constructed in a negligent and unskillful manner, it would have been demurrable; but as it appeared from the evidence that the railway was constructed in the usual and ordinary manner, and that the ditches complained of were the mere incidents of or necessary to the proper construction of the road, no liability to the landowner for injuries from surface water rested upon the railway company.
On the part of Renfro, two cases are cited from Minnesota which are claimed to be nearly identical with the case presented, and to sustain the judgment rendered, These are Hogenson v. St. P. M. & M. Rly. Co., 18 Am. & Eng. Rld. Cases, 291; and Olson v. St. P. M. & M. Rld. Co., 34 id. 152. In the first case, the railway company extended its road in a northeasterly and southwesterly direction; there were ditches parallel with the railroad; the water collected in these ditches, and the company, for the express purpose of draining its land,
There is a marked distinction between A. T. & S. F. Rld. Co. v. Hammer, 22 Kan. 763" court="Kan." date_filed="1879-07-15" href="https://app.midpage.ai/document/atchison-topeka--santa-fé-railroad-v-hammer-7884940?utm_source=webapp" opinion_id="7884940">22 Kas. 763; C. K. & N. Rld. Co. v. Steck, 51 id. 737; Jordan v. Railway Co., 43 N.W. 849" court="Minn." date_filed="1889-12-09" href="https://app.midpage.ai/document/adamson-v-horton-7966268?utm_source=webapp" opinion_id="7966268">43 N. W. Rep. 849; Hannaher v. Railway Co., 37 id. 717, and the Hogenson and Olson and similar cases, which is clearly noticeable, if the opinions are carefully read and examined. In fact these cases do not conflict, but the latter cases are not applicable to the facts of this case; therefore, the principles in the former cases control.
For the list of states that follow the common-law rule concerning surface water, and those that follow the civil-law rule, see 34 Am. & Eng. Rld. Cases, 148-152; Grould, Waters, §265.