Bunderson v. Burlington & Missouri River Railroad Co. , 43 Neb. 545 ( 1895 )

Ryan, C.

In the district court of Douglas county plaintiff.in error claimed damages of the defendant because of an embankment which, by reason of its alleged negligent construction and the omission to provide for an outlet for the overflow waters of Big Papillion and Little Papillion creeks, had caused lands, of which plaintiff was tenant, to be overflowed, and his growing crops thereon to be destroyed. The nature of the overflow complained of was described by a son of plaintiff as that which occasionally came down through a depression between the two streams, which was somewhat obstructed by the embankment built by the defendant ; that this overflow was not attributable to the existence of the railroad embankment, but the embankment interfered with it. The other witnesses of plaintiff did not with the same clearness describe the overflow complained of and its real cause, as was done by the witness just referred to, but their testimony was to the same effect. When plaintiff rested his case the court instructed the jury to find for the defendant, which was done and judgment was accordingly rendered. There was evidence that a proper construction of the embankment required that through it there should have been left an opening by means of which the surface water could escape when its natural flowage was interrupted by this railroad grade. It was not claimed that there should have been no embankment, neither was there attempted proof that plaintiff’s cause of complaint .could have been met in any way, other than by an opening as above indicated. In Fremont, E. & M. V. R. Co. v. Marley, 25 Neb., 138, Maxwell, J., in delivering the opinion of this court, said: “A party has no right to-gather up surface water and discharge it on the land of another, to his damage. (Davis v. Londgreen, 8 Neb., 43; Pyle v. Richards, 17 Neb., 181; Stewart v. Schneider, 22 Neb., 286.) The question was before the supreme court of Michigan in Gregory v. Bush, 31 N. W. Rep., 94, where it was said that ‘one has a right to ditch and drain, and dispose of the surface water upon his land as he sees fit; but he is not authorized to injure, by so doing, the heritage of his neighbor. He cannot collect and concentrate such waters and pour them through an artificial ditch in unusual quantities upon his adjacent proprietors. (Kauffman v. Griesemer, 26 Pa. St., 407; Barkley v. Wilcox, 86 N. Y., 148; Noonan v. City of Albany, 79 N. Y., 475; Adams v. Walker, 34 Conn., 466.)’' This, we think, is a correct statement of the law.” This case was approved in Lincoln S. R. Co. v. Adams, 41 Neb., 737. The only improvement upon the plan adopted and made use of by the construction of a solid embankment was forbidden by law, so that we are bound to accept the manner of construction shown as that which was least objectionable under the circumstances of this case. In Morrisey v. Chicago, B. & Q. R. Co., 38 Neb., 406, one judge dissenting, it was held by this court that the term “surface water”-includes such as is carried off by surface drainage, — that is, drainage independently of a water-course; and for the construction of an embankment proper for railroad purposes, which deflects such water from its normal course, a railroad company is not liable in damage to the proprietor of neighboring lands thereby incidentally overflowed and injured. This was approved in Anheuser-Busch Brewing Association v. Peterson, 41 Neb., 897. This statement of law is applicable to the rights of a lessee as well as to the proprietor of real property overflowed and injured; as applied to rights, of either, it is, therefore, approved as correct. The results above attained are such as completely justify the instruction given by the district court. Its judgment is, therefore,

Affirmed.