OLSON V. ST. PAUL, MINNEAPOLIS, & MANITOBA R. Co. (Minnesota Supreme Court, May 14, 1888.) Surface Water- Railroad Ditch-Discharge. A railroad company has no right, by means of a ditch, to turn the surface waters accumulating upon its own land, upon the land of another where they would not otherwise go. APPEAL from District Court, Clay County. Action by Martin Olson against the St. Paul, Minneapolis, & Manitoba Railway Company, to recover damages for injuries to crops caused by the defendant company negligently diverting surface waters upon his lands. The railroad company built a By ditch about three miles in length, at a right angle from ditches excavated parallel to and upon each side of its road-bed. means of the long ditch, it was alleged surface waters were collected, carried in the direction of plaintiff's farm lands, and then turned out so as to reach his land in such quantities, and for such a period of time, as to destroy his crops. The District Court rendered judgment for plaintiff, whereupon defendant appealed. M. D. Grover for appellant. Charter provision. GILFILLAN, C. J.We have carefully examined the evidence in this case, and find there is sufficient to sustain the findings of fact of the court below. Those findings bring the case within the rule laid down in Hoganson v. Railway Co., 31 Minn. 224; s. c., 14 Am. & Eng. R. R. Cas. 291. The defendant, however, claims that, under section 3 of its charter, to wit, subchapter I of chapter I of the Acts passed at the extra session of 1857,-it had authority to construct the ditch which discharged the waters so that they flowed upon plaintiff's land, and destroyed his crops. That section reads, "Said corporation shall have the right to enter upon any lands for the purpose of making surveys and for a right of way; may appropriate to its sole use and control, for the purposes contemplated herein, land 1 SURFACE WATERS. For a full discussion of the doctrines of surface waters, see ante, Philadelphia, W. & B. R. Co. v. Davis, 143, and note 148. not exceeding two hundred feet in width throughout the entire line of its said railroad; may enter upon, take possession of, and use all and singular any lands, streams, and materials of every kind beyond the width of two hundred feet, for the location of depots, station-grounds, and houses, for the purpose of constructing bridges, dams, embankments, excavations, spoil-banks, terminals, engine-houses, shops, and other buildings necessary for the constructing, completing, altering, maintaining, preserving, and complete operation of said railroad. All such lands, waters, materials, and privileges belonging to the Territory or future State of Minnesota are hereby granted to said corporation for said purposes, and this Act shall be sufficient notice to all persons claiming an interest in the same. But lands owned or belonging to any person, company, or corporation may be taken and appropriated for the purposes aforesaid, and shall be valued and paid for in the manner hereinafter provided." It would certainly be a very large construction to hold, that, under this language, the defendant could enter upon and appropriate (even upon making compensation) the lands of private persons, and dig a ditch three miles long, at right angles to its line of railroad, No right to for the purpose of carrying off the water accumulating face water. along by the sides of the embankment for its road-bed. But, conceding that it had the right to dig the ditch to the full extent that it would have if it owned the land in fee, still it would not have the right, by means of it, to turn the waters accumulating on its own land upon the land of another, where they would not otherwise go. The decision referred to did not proceed upon the theory that the defendant committed any trespass or wrong by the mere act of digging the ditch, but assumed that it was dug on its own land. It is not found that plaintiff was the owner of the land, the crops on which were damaged by the water being turned upon it, but he was in possession; and that, it being presumed to have been rightful, was sufficient to enable him to maintain an action for damages to the crops. Order affirmed. discharge sur OLSON ย. ST. PAUL, MINNEAPOLIS, & MANITOBA R. Co. (Minnesota Supreme Court, June 1, 1888.) Surface Waters - Damming back Overflow- Liability. A railroad company, in order to carry off the surface water from its road-bed, constructed a ditch about three miles in length, running at right angles from ditches excavated parallel to and upon each side of the road-bed. The owner of the lands upon which such ditch terminated obtained a judgment against the company for damages for injuries to his crops. Thereupon the railroad company, deeming the ditch to be a nuisance, closed it by building a dam at the point upon its right of way where it intersected one of the parallel ditches, causing an overflow in the latter, whereby the lands of the plaintiff in the present action were inundated, and his crops ruined. It appeared that the company had solicited and obtained from plaintiff the right to excavate the ditch across his land, representing that it would drain and greatly benefit it; that verbal permission was given, whereupon it built the ditch, using a strip of land about sixteen feet wide and about half a mile long; and that plaintiff's lands were drained and greatly benefited by the ditch, as represented. Held, that the company having formed the ditch across the plaintiff's land under a simple verbal license revocable at pleasure, and having no easement authorizing it to maintain it there, it was not obliged to continue to keep the ditch in use, and that it was not liable to the plaintiff for damages to his crops caused by the simple act of closing the ditch upon the company's own land, whereby, - by reason of the contour of the ground, - surface waters, the overflow of the parallel ditches, made their way across plaintiff's farm substantially as they would do in their natural course, were the ditches not in existence. APPEAL from District Court, Clay County. Action by Ole A. Olson, to recover damages for injuries to land and crops by overflow, caused by the action of the defendant, the St. Paul, Minneapolis, & Manitoba Railway Company, in damming up a ditch constructed across plaintiff's land. Plaintiff appeals from a judgment for the defendant. The facts sufficiently appear in the opinion. O. Mosness for appellant. M. D. Grover and W. E. Smith for respondent. COLLINS, J.-This case may well be denominated as the opposite of that decided at this term, wherein one Martin Olson is plaintiff, in which this defendant, a railroad corporation, was compelled to respond in damages for maintaining a ditch some miles in length, built at a right angle from ditches excavated parallel to and upon each side of its road Facts. bed; by means of which it was alleged that surface waters were collected, carried in the direction of said Olsen's farm lands, and then turned out so as to reach his farm in such quantities and for such a long period of time as to destroy his crops. In this case the plaintiff's right of action is based upon the fact, that, discovering it to be a nuisance, the defendant closed the long ditch, before mentioned, by building a dam therein at the point upon its right of way where it intersected one of the parallel ditches, causing an overflow in the latter, whereby the lands of plaintiff near by were inundated and his crops ruined; and upon the further facts that defendant solicited of plaintiff the right to excavate said long ditch across his land, representing that it would drain and greatly benefit it; that verbal permission was given defendant, whereupon it built the ditch, using a strip of plaintiff's land about sixteen feet wide and one-half mile long; that the lands of plaintiff were drained and greatly benefited by the ditch, as represented, upon which facts he relied and acted when planting the crops said to have been destroyed. As stated, the long ditch had been declared a nuisance when open; and we are now called upon to hold that defendant had no right to abate the nuisance by closing it upon its own premises, at a point and in a manner which will effectually prevent the further improper precipitation of the waters which may accumulate along its roadbed in the parallels, thence flow into the long ditch, and through that, to the detriment of land-owners below its terminal. Should we be so compelled to hold, the defendant would be placed in a most uncomfortable predicament. The appellant (plaintiff) insists that the fourth finding of fact, as made by the trial court, is entirely out of the record, not justified by the pleadings, nor warranted by any testimony properly before it upon this hearing. The finding, concisely stated, is, that the long ditch is a nuisance, and, when open, flooded the lands below its mouth, to the damage of their owners. It seems, that, prior to the trial of the case at bar, several actions in which the respondent was defendant, of the same nature of the one herein mentioned, had been arbitrated, tedious hearings had, much testimony taken and reduced to writing. It was herein stipulated that said testimony, "so far as applicable under the pleadings," should be read, and upon such testimony and other stipulated matters the case should be tried. It must be admitted that there is no allegation in the pleadings under which testimony tending to warrant the finding could be introduced, if reasonably objected to; but it does not follow that there was not offered, read, and received without protest, and possibly by consent, abundant testimony upon the point covered by the finding. The testimony taken by the arbitrators, and used upon this hearing by stipulation, is not presented to us as a part of this record, and we cannot infer that any part of it was improperly received or considered, or that the finding is not fully justified by evidence introduced without objection. The presumption is, that the fact embraced in the finding was properly litigated at the trial, and is sustained by competent testimony. Jones v. Wilder, 28 Minn. 238. We gather from appellant's brief his concession that the evidence before the arbitrators was ample to warrant such a finding of fact, but that the court should have wholly ignored it. This would have imposed upon the court the labor of closely scrutinizing many folios of written evidence, extracting such as might be clearly admissible in the case at bar, and rejecting the balance, without the aid or suggestion of counsel. Plaintiff not - If in this testimony there was much that was inadmissible under these pleadings (as is now asserted), the obligation rested upon counsel - not on the court to discover it, and by timely interference prevent its consideration. There was no contract between these parties, even by parol. The findings obliged to con- of the court show that plaintiff permitted the defendtinue ditch, nor ant to enter upon his land, and make an excavation, which the latter represented would be of benefit to damages. the plaintiff, increasing the productiveness of his land. Not a single element of a binding contract existed; it was simply a license to perform certain acts-authority for whatever might be done within its terms, but revocable at pleasure. The right to maintain the ditch is an easement which can only be acquired by grant or prescription. See Johnson v. Skillman, liable for 29 Minn. 95, in which the cases are collated and thoroughly reviewed. As the defendant obtained no easement upon plaintiff's land, is wholly without authority to maintain the ditch thereon, has no remedy should its further enjoyment be forbidden, it must follow that it is not obliged to continue or keep it in use. Nor can it be compelled to compensate plaintiff for damages to his crops caused by its simple act of closing the ditch upon its own land, whereby, by reason of the contour of the ground, surface waters the overflow of the parallel ditches-make their way across plaintiff's farm substantially as they would do in their natural course, were the ditches not in existence. We deem it unnecessary to say more, save that the doctrine of estoppel in pais has no application here, and that there has been no violation of sect. 60, c. 124, Gen. St. 1878. Judgment affirmed. Surface Waters. For a full discussion of the civil and common law doctrines in regard to surface waters, see Philadelphia, W. & B. R. Co. v. Davis, ante, 143, and note 148. Damming Back Water. See post, Sabine & E. Tex. R. Co. v. Wood. |