Bismarck daily tribune. [volume] (Bismarck, Dakota [N.D.]) 1881-1916, 1916-02-01

tlalQIlIiS anu Respondents,
vs.
Northern Pacific Railway Company, a
foreign corporation,
Defendant and Appellant
Syllabus: a. Both under the civil
law rule as to suraca waters and IN
der the so called common law or
common enemy rule, q natural drain
way must be kept open to carry the
water into the streams and the loWaT
estate is subject to a natural serri-
tude or that purpose.
ca Proof that a drain or ditch re-
ceives the surface water OF a drain
age area OF some 16S acres, is sew
eral feet in depth has well defined
channel, and though il has grass
growing AT its sides. has a space at
the bottom which is worn away by
the water TO a breadth of three Or
four feet and that such drain or ditch
serves to convey the waters OF the
area into a river Or stream, will just
! ify the jury i'll holding that such q
drain or ditch is natural drainway
Or drainage channel and this though
there is no evidence that the water
ran in the same al all times but
merely that the drain or ditch served
to convey the melting SHOWS and sur
face waters.
CD Ii is the duty of lower land
owner who builds structure across
a natural drainway to provide for the
natural passage through such OBJ
struction of all water which may be
reasonably anticipated to drain there
in, and this is continuing duty.
"a Where there is evidence which
tends TO show that a drainwav is a
natural drainway and that il has
been INSTRUCTED by a lower land own
er and that such obstruction occa-
stoned the flooding Of and injuries
to the property OF an upper land
owner, the burden of proof is upon
the defendant Or lower land owner
when sued for such damages, 10 prove
that the storm which OccasiOned the
flood was unprecedented; that 1t could
not have been reasonably anticipated
and need not have been provided
against
not to be such as to justify hold
ing, as matter of law. that the
storm in question was so unprece-
dented that il should not have been
anticipated but rather that the fact
was one for the jury 10 pass UPON
(61 Extraordinary or unprecedent-
ed floods are fiods which are of such
-baT ri
not have been foreseen by men OF Or
binary experience and prudence. Or
binary floods are those the occnrr-
ence OF which may be reasonably an
ticipated from the general experience
of men residing in the region where
such floods happen.
90 In passing upon what Is or
What is not an extraordinary flood
Or whether il should have been an
ticipated and provided against the
question to be decided is: "Gonsifl-
erine the rains of the past. the tDpo-
graphical and climatic conditions OF
the region and the nature OF the
drainage basis as to the nervousness
of the soil the presence Or absence
OF trees Or heritage which would tend
TO increase Or prevent the rapid run
ming OFF of the water, would Or should
reasonably prudent man have lore
seen the danger and provided against
it?''
(Sl An instruction III an action
against q railway company for neg
ligence in obstructing a natural chan-
mel and thereby damaging plaintiff S
goods, thai If you believe that the
plaintiffs are entitled 10 recover as
heretofore instructed. then II is your
duty TO determine the amount of the
damages sustained by reason of the
flooding of these premises, and they
are entitled To make matters whole
is sufficiently definite as To the meas
ure OF damages, in the absence OF any
requested instructions upon the sub
ject
{s1 One VIM is sufficiently quail
fed 10 testify as TO the yRine Of a
stuck OF hardware and 10 the Injury
To II by food and its depreciation m
value. who is shown to have worked
in a hardware s1Dre fgT at least seven
wears. To have been q manager of
such stDre during such time Hnd 10