Lahti v. Duluth, Missabe & Northern Railway Co. ( 1923 )

Dibell, J.

Two actions tried together, one against the Duluth, Missabe & Northern Railway Company, the other against James C. Davis, Agent designated by the President under the Transportation Act, to recover damages for the flooding of the farm of the plaintiff. In each case there was a verdict for the plaintiff. The defendants appeal from the alternative order denying their motion for judgment or a new trial.

The ¡plaintiff is the owner of the SW-J of the NWj of 4-54-20, in St. Louis county. Sand creek, a branch of the St. Louis river, runs through it. Alborn is a station on the main line of the defendant railway some 35 miles northwest of Duluth. From this point the main line runs north to the iron country. Another line, known as the Alborn or Coleraine branch, extends northwesterly from Al-born to Coleraine in Itasca county. At a point on this branch, called Hull Junction, some 25 or 30 miles northwest of Alborn, a branch known as the Hull-Rust branch, carrying ore traffic only, goes north to the Hibbing mining district. Sand creek is northerly and easterly of these branches. Both branches are in swamp. The nearest corner of the plaintiff’s farm is a little more than a half mile easterly or northeasterly of the Coleraine branch and a mile and a half or so southeasterly of Hull Junction.

The railway company constructed ditches designated in the evidence as numbers 1, 2, 3, 4, 5, 6 and 8 from its roadbed so as to outlet in Sand creek. Ditches 1, 2, 3 and 4 pass from the railroad ditch and outlet below plaintiff’s land. Number 5 outlets in his farm. Numbers 6 and 8 outlet above it. Through the roadbed are culverts connecting with the ditches. These carry the waters collecting in the ditch on the southwesterly side of the Alborn branch. At Hull Junction, something like a mile and a half to the northwest of the plaintiff’s farm, is a large swamp. It is tapped by Ditches 8 and 6. There is evidence that it contains 25 or 30 thousand acres; that water is in it the year round; that it is in some places 5 feet to the sand bottom, and in other places 20 feet; and that in some places it is waist deep. It is described by some as an open swamp. There are in it islands which have a solid bottom, and there is floating bog. Water stands in the swamp southwest of the Alborn branch. The creek is the general route of natural drainage.

The court correctly defined to the jury the difference between surface waters and permanent waters and correctly stated the law applicable to the drainage of each. The charge closely followed Hartle v. Neighbauer, 142 Minn. 483, 172 N. W. 498, and other cases there cited, and Krupke v. Stockard, 103 Minn. 349, 115 N. W. 175, and is in harmony with our cases decided since. The occasion does not call for a restatement of the law or a review of the cases. They are accessible. Dunnell, Minn. Dig. and Supp. § 10165, et seq.

The court charged that there were permanent waters in the big swamp at Hull Junction. Under the evidence there were. Such was the effect of the testimony of the witnesses on both sides who pretended to knowledge. The character of the swamp we have described.

The court charged that only to such waters of the swamp as were permanent in character could they apply the law applicable to the drainage of permanent waters, and correctly instructed it as to the separation of damages accruing from permanent waters and properly drained surface waters. .The charge was not in this respect unfavorable to the defendants. Over and over again the jury was told that only in event that permanent waters did the damage to the plaintiff’s land, or some damage to it, could there be a recovery for the drainage of permanent waters, and that damage done by surface waters properly drained, tbe rules for the proper drainage being rightly stated, must be eliminated from a verdict.

The evidence sustains the finding that permanent waters from the swamp reached the plaintiff’s farm and definitely contributed to its flooding. This does not mean that a verdict for .the defendants would not be sustained. It may be that the waters coming through the low ditches, especially 1, 2, 3 and 4, were not permanent waters. We do not say so. There is evidence that waters stood in these ditches all the year. Tbe swamp to the west, from which waters were collected by the railroad, was a big one, and waters stood in it and on its surface. There was no effort by the defendants to eliminate the Tower ditches from consideration, nor was their importance at all emphasized by the court. If anything it was minimized. Ditches 8 and 6, especially 8, were the ones that apparently did the greater damage. The effect of 5 was probably not negligible.

It is claimed that the damages are so excessive as to indicate passion and prejudice. Perhaps they are large. We cannot hold that they are excessive within the rule.which permits our interference. They are within the evidence. The jury may not have given full credence to the witnesses testifying as to value, or it may have made deductions because it believed that some of the damage was done by properly drained surface waters. The determination of the amount was for the jury subject to the supervision of the trial court.

One ground of the motion for a new trial is newly discovered evidence. That now offered as newly discovered tends to show that prior to the construction of the ditches Sand creek in times of heavy' rains overflowed. From such evidence it would be urged that surface waters and not permánent waters drawn from the swamp did the damage. Whether a new trial should have been granted on this ground was for the trial court and the record does not indicate that it unwisely exercised its discretion.

There are a large number of assignments, 29 in all, some of them involving several separate points. We have examined each of them. Some relate to the admission or exclusion of evidence. Some relate to the charge, or some detached portion of it. We find no error in the admission of evidence calling for consideration, and no errors in the charge which need be discussed. It seems to us that there was a complete and clear presentation of the evidence, with no unfairness to the defendants either in the statement of the law or in the reference to the facts. The evidently candid claims of the defendants in this respect have been carefully considered, but we do not find substantial basis for them.

Order affirmed.