88 Kan. 248 | Kan. | 1912
The opinion of the court was delivered by
These were actions brought by theappellees against the Chicago, Rock Island and Pacific Railway Company to recover for injury and destruction of their crops alleged to have resulted from the negligent construction of embankments and bridges on which appellant’s railroad was placed. The Cottonwood river flows from west to east through a level valley in Marion county and drains a large scope of country. In 1888 appellant constructed its railroad from north to south across the valley at nearly right angles with the river. The line of the Atchison, Topeka and Santa Fe Railway Company was constructed from east to west parallel with and about nine hundred feet north of the river. The lands of appellees lie west of appellant’s railroad and north of the Santa Fe railroad, in the northwest angle formed by the two railroads. The valley is low and wide at this point and both railroads are constructed on embankments of earth. The point where appellant’s bridge is built across the river is higher than any of the lands in the valley for a considerable distance in either direction, and the abutments of the bridge are about one hundred and nineteen feet apart. The land slopes from
In this appeal it is contended that appellant was
The contention that the history of the river and of that section of the country demonstrates that the flood of 1909 was unusual and extraordinary is answered by the evidence and the findings and verdict of the jury. The fact that the flood was unusual and nut of the ordinary does not necessarily relieve the
“The test of liability, however, is not whether the rainfall was unusual or extraordinary, but whether it was such as might have been reasonably foreseen by bringing to the building and maintenance of the bridge such engineering knowledge and skill as is ordinarily applied to such work. In the minds of some a freshet is neither usual nor ordinary, but since they do occur occasionally, and may reasonably be expected to occur, provision should be made for them.” (p. 79.)
The same view was taken in Union Trust Company v. Cuppy, 26 Kan. 754, and Manufacturing Co. v. Bridge Co., 81 Kan. 616, 106 Pac. 1034.
In O. & M. Ry. Co. v. Ramey, 139 Ill. 9, 26 N. E. 1087, it was said:
“The question, then, is not whether appellant has sufficiently provided for the escape of water of ordinary floods, but, has it provided for the escape of the water of such unusual or extraordinary floods as it should have anticipated would occasionally occur in the future, because they had occasionally occurred after intervals, though of irregular duration, in the past.” (p. 13.)
It matters little what term is applied to a flood, and it may be that a flood such as has occurred at intervals for a number of years and which it is reasonable to expect will occur again should not be designated as extraordinary, but whatever name is given to it a liability will arise against one whose obstruction causes the overflow and injury if he 'was in fact-
Another contention is that the flood water which passed down the swale against the embankments of
“There are cases intimating and. even expressly holding that whenever the banks óf a stream are overflowed the surplus becomes at once surface water—a ‘common enemy,’ against which any one may protect himself. The great weight of authority, however, supports the view that it is to be so regarded only in case it has ceased to be a part of a general current following the channel; that if it continues to flow in the same direction while outside of the banks, returning thereto upon the subsidence of the- flood, it is to be deemed a part of a running stream, and. that it only loses its character as such when it spreads out over the open country and settles in stagnant pools or finds some other outlet.” (p. 621.)
The same rule was applied in Roland v. Railway Co., 82 Kan. 546, 108 Pac. 808, and other supporting authorities are: Fordham v. Northern Pacific Ry. Co., 30 Mont. 421, 76 Pac. 1040; Uhl v. Railroad Co., 56 W. Va. 494, 49 S. E. 378; Clark v. Guano Co., 144 N. C. 64, 56 S. E. 858; Town of Jefferson et al. v. Hicks, 23 Okla. 684, 102 Pac. 79; Chicago, B. & Q. Rld. Co. v. Emmert, 53 Neb. 237, 73 N. W. 540; 40 Cyc. 639; and 3 Farnham on Waters and Water Rights, § 879.
Although it is contended that the bridge and em
Complaint is made of the fifth instruction given to the jury, but it is in consonance with the ruling in Manufacturing Co. v. Bridge Co., 81 Kan. 616, 106 Pac. 1034, a ruling which is followed in this decision. The sixth instruction, to which objection is made, also appears to be within the rules already stated. The seventh instruction interpreted literally would appear to be in conflict with the rules stated in the fifth instruction. The jury were told that “a swale, slough or depression which carries water only in time of floods or excessive rainfall is not a watercourse the obstruction of which by a railroad embankment without openings will render the company liable for damages.” The jury found, in answer to special questions, that the swale south of the river did not carry anything but surface water under ordinary circumstances, nor any water from the river except at such times as when
Some other criticisms are made of the charge, but we find no material error in it, nor any ground for reversal. The judgment is affirmed.