39 F.2d 165 | D. Kan. | 1925
The facte of this ease, as pleaded, are substantially as follows:
The plaintiff is the owner of a large body of farming lands in Cowley county, this state, through which flows a stream called Grouse creek. Some twenty years ago there was constructed through parts of the land of plaintiff a railroad now owned and operated by defendant. As this line of railway runs
The second count claims for damages due plaintiff in the loss of his crop for the year 1923, done in like manner, in the sum of $4,000; and the third count claims for damages done the real estate of the plaintiff from the closing of the trestle way under the track, andi the injury claimed on this count is in the sum of $5,000.
To this petition, and each count therein, defendant demurs.
The question is, May the defendant close up an opening under its track along a stream to such an extent that if the stream in flood times shall gol out of its bank and flow along a depression or swale through the small opening in the railway embankment onto the adjoining lands and erops of plaintiff, and on account of the small size of the opening the water is there held impounded until damage is done to the land and crops which would not have occurred if the opening had been left as originally constructed on the trestle work?
The solution of this question must depend upon a further question. Is the water involved in this case, the same being overflow water from Grouse creek, surface water?
While there-is an act of the Legislature of this state changing the common law rule as to surface water in certain instances, I do not find this act applies to the facts of this controversy. Hence, any construction of the law with reference to this act may be laid aside. This act reads:
“24 — 105. Obstructing flow of surface water. A lower owner or proprietor shall not construct or maintain a dam or levee for the purpose of obstructing the flow of surface water onto his land to the damage of the adjacent upper owner or proprietor; but nothing herein shall be construed as preventing an owner of land from constructing a dike or levee along the bank of a natural watercourse to repel flood water from such natural watercourse: Provided, That the provisions of this act shall apply only to lands used for agricultural purposes and highways lying wholly outside the limits of any incorporated city.” 24 — 105, Rev. St. Kansas 1923.
Are the flood waters coming upon the land of plaintiff through the small opening in the railway embankment surfa.ce water? This question is one of local law. The Supreme Court of! this state in Missouri Pacific Railway Co. v. Keys, 55 Kan. 205, 40 P. 275, 49 Am. St. Rep. 249, held:
“Waters which have overflowed the banks of a stream during a freshet, in consequence of the insufficiency of the channel to hold and carry them off, are surface waters, to be treated as a common enemy, against which any landowner affected may protect himself.”
In delivering the opinion of the court, Mr. Justice Johnston quoted with approval from Atchison, T. & S. F. R. Co. v. Hammer, 22 Kan. 768, 31 Am. Rep. 216, as follows:
“The simple fact that the owner of one tract of land raises an embankment upon it which prevents the surface water falling and running upon the land of an adjoining*167 owner from, running off said land, and canses it to accumulate thereon, to its damage, gives to the latter no cause of action against the former. Nor is the rule changed by the fact that the former is a railroad corporation, and its embankment is raised for the purpose of a railroad track, nor by the fact that a culvert could have been made under said embankment sufficient to have afforded an outlet for all such water.” See, also, Chicago, K. & N. Ry. Co. v. Steck, 51 Kan. 737, 33 P. 601; Missouri Pac. Ry. Co. v. Renfro, 52 Kan. 237, 34 P. 802, 39 Am. St. Rep. 344. See, also, Singleton v. Railway Co., 67 Kan. 284, 72 P. 786.
It must, therefore, I think, be held the water leaving Grouse creek occasionally in time of high water therein, while out of the stream and flowing upon and over the lands of plaintiff and the right of way of the railway company, must be regarded and treated as surface water.
'Now, with regard to the law of surface waters, two views have been adopted in different jurisdictions. One the rule of the civil law. The other, the rule of the common law. See, Thompson v. McDougal, 103 Kan. 373, 175 P. 157, and cases cited. The common law rule has been adopted as the law of this state. Chicago, etc., R. Co. v. Steck, 51 Kan. 737, 33 P. 601; Missouri Pac. Ry. Co. v. Keys, 55 Kan. 205, 40 P. 275, 49 Am. St. Rep. 249; Singleton v. A., T. & S. F. R. R. Co., 67 Kan. 284, 72 P. 786; Bryant v. Merritt, 71 Kan. 272, 80 P. 600; Darlington v. Cloud County, 75 Kan. 810, 88 P. 529; Paola v. Garman, 80 Kan. 702, 103 P. 83, and many later cases.
By this rule surface waters are regarded as a common enemy and each proprietor may make such fight upon them as he may please in the protection of his own property. The proprietor of a railway right of way has just the same right in this regard as has the owner of farms or farming lands.
As large openings, such as bridges and trestles under railway tracks, are eoneededly dangerous, or, at least, more dangerous in the operation of a railroad than is a solid embankment, the railroad had the undoubted right in this case to fill in its embankment, placing thereunder a solid embankment instead of a trestle, and if in so doing it obstructed the free flow of surface water from the river onto plaintiff’s lands, or from plaintiff’s lands to the river, to the injury of plaintiff, such injury is damnum absque injuria, and the demurrer must therefore be sustained. It is so ordered.