31 Kan. 120 | Kan. | 1883
The opinion of the court was delivered by
This was an action commenced by defendant in error, plaintiff below, in the district court of Riley county,
We. think the decision of the district court was right, and must be sustained. We do'not care to enter into any extended examination of this question, and for these reasons: The question is one whose final determination rests with the federal supreme court. One or more cases involving this question have been decided in the circuit court of the United States of this circuit, and are now pending on appeal in the supreme court. We are aware of a difference of opinion between federal judges, but the judges of this circuit hold such a case not removable. Besides the weight which is due to the opinion of judges of such eminent ability as Justices Miller and McCrary, who united in this decision, it is well that there should be accord, so far as possible, between the federal and state courts in each district. So, without further discussion, we simply express our concurrence with the views of those judges on this question, and sustain the ruling of the district court.
To understand the further questions in this case, a brief statement of the facts as developed by the testimony is necessary. Plaintiff was the owner of a farm lying east of the Fort Riley military reserve. Through that farm and through the reserve, the defendant’s railroad runs, the right-of-way through the farm being granted by deed from the plaintiff in fee simple, and through the reserve by act of congress. On the south side of the railroad track and adjoining the reserve,
The question in the case is, whether the railroad company is responsible for the destruction of this crop. Of course, to establish this liability, two things are necessary: First, that the flow of water through these ravines, ditches, sloughs, etc., was the flow of a natural watercourse; and second, that by the enlargement and deepening of the ditch above mentioned, the flow of that watercourse was diverted. The instructions of the court as to what constitutes a natural
These, we believe, are all the material questions, and in them appearing no error, the judgment will be affirmed.