Union Pac. R. v. Campbell

TRIEBER, District Judge (after stating the facts as above). There áre 40 assignments of error, most of them mere repetitions. 'At the close of all the evidence the defendant asked for a peremptory instruction on both counts, which was denied by the court, properly excepted to, and assigned as one of the errors committed by the court. This is the only assignment of error which we deem necessary to determine. [1] The undisputed facts established by the evidence are that between 1872 and 1875 the Boulder Valley Railway Company built a trestle across the place where the embankment is now. The ground was low and marshy, and the trestle was built because less expensive than to have built a solid embankment at that time; that not later than 1890 the Boulder Valley Railway Company, who was still the owner of the railroad, filled this trestle, removed the bridge, and made a solid embankment, which embankment has been maintained ever since without any change, either by the Boulder Valley Railway Company or the defendant. In 1898 the defendant became the owner of the Boulder Valley Railway Company, by purchase at a foreclosure sale made by order of the court, and has ever since been the owner thereof; that the excavation mentioned in the complaint, along the south side of said embankment, was also made at the time the filling was done. The land of the plaintiff is low, and long before the plain [711] tiff Counter purchased it and the defendant became the owner of the railway, this land had been overflowed when there were extraordinary heavy rains, such as those in 1912 and 1914. No request to provide outlets for the water was ever made by the plaintiffs. There was no bridge or trestle at that place since 1890, after the filling had been done. There was no substantial evidence that there ever had been a water course to carry off the water from this tract; there were several depressions on the land, but no definite course that could be traced. Upon these facts we are of the opinion that there is no liability on the part of the defendant, and that the court should have directed a verdict in favor of the defendant, as requested. The defendant did not construct this embankment; it had been there for at least eight years before it purchased the Boulder Valley Railway. It has done nothing since its purchase which could in any wise add to the injury of plaintiffs’ land. When the plaintiff Counter purchased the land, and his coplaintiff, Campbell, rented it, they knew that the embankment was there, that it was a permanent structure, and would prevent any flood waters from running off their lands toward the north, and no doubt that fact was taken into consideration in determining its value. No request was ever made to the defendant to remove it, or provide outlets. Upon these facts the defendant is clearly not liable. Cases directly in point are Philadelphia, etc., R. R. Co. v. Smith, 64 Fed. 679, 12 C. C. A. 384, 27 L. R. A. 131; Central Trust Co. of New York v. Wabash, etc., Ry. Co. (C. C.) 57 Fed. 441; Plumer v. Harper, 3 N. H. 88, 14 Am. Dec. 333; Noyes v. Stillman, 24 Conn. 15; Conhocton Road v. R. R. Co., 51 N. Y. 573, 10 Am. Rep. 646; Ahern v. Steele, 115 N. Y. 203, 22 N. E. 193, 5 L. R. A. 449, 12 Am. St. Rep. 778; McDonough v. Gilman, 3 Allen (Mass.) 264, 80 Am. Dec. 72; Nichols v. City of Boston, 98 Mass. 39, 93 Am. Dec. 132; Castle v. Smith, 4 Cal. Unrep. Cas. 561, 36 Pac. 859; Pierson v. Glean, 14 N. J. Law, 36, 25 Am. Dec. 497; Beavers v. Trimmer, 25 N. J. Law, 97; Board of Directors v. Barton, 92 Ark. 406, 123 S. W. 382, 25 L. R. A. (N. S.) 645, 135 Am. St. Rep. 191. As stated by Judge Dallas in Philadelphia, etc., R. R. Co. v. Smith: “A grantee should not, of course, be held responsible for tbe creation of an injurious structure by his grantor, and, if not notified of objection, he may bo ignorant of its harmful nature, or may legitimately'presume that it is voluntarily submitted to; and therefore a plaintiff ought not to be permitted to recover damages for injury alleged to have been done to him by the maintenance of a pre-existing condition during a period when, with full knowledge of his hurt, he had made no complaint of it, nor requested the removal of its cause.” For refusing to direct a verdict in favor of the defendant, the cause is reversed, with directions to grant a new trial.