The Dickinson press. (Dickinson, Stark County, D.T. [i.e. N.D.]) 1883-1927, 1916-02-05
SUPREME COURT
RULES IN FAVOR
OF LOCAL men
DECISION OF DISTRICT COURT
UPHELDBY SUPREME COURT
OF. NORTH DAKOTA.
Damages :of $4,000 Claimed as Re-
suit of Backing Up Surface Water
From Railway Culvert.

Ht CEom halfway OulVerts
A decision has just been handed
down by the supreme court of the
state which affirms the decision of
the lower court in the Tenth Judicial
district which awarded Soules &
Butler, engaged in the hardware busi-
ness in Dickinson, damages to the
amount Of $4,000 from the Northern
Pacific Railway Co. for damage to
their stock caused by a flood of sur
face water which followed an unusu-
ally heavy rainstorm on July 18th,
1914, when two inches of rain fell
in about :an hour and four inches in
less than ten hours. The culvert
under the Northern Pacific tracks in
the eastern part of the city, four
feet in diameter, was entirely made
quate to carry off this great volume
OF surface water, which backed up,
filling easements and first floors in:
several blocks. 80.
Damage suits aggregating about
5000 were instituted against the,
railway company, and these are still
on the calendar pending the outcome
of the test case filed by Soules &.
Butler. Damages were asked for as
follows: st. Charles hotel, 5000;
Boulger & Hughes, $1,000; Mrs.
Minnie Klinefelter, $1,000; Mrs. ]. M.
Cornwall, 81 500; Mrs. Harriet Wier,
$1,5OO; Thos. Val1ancey, 81 ,0O0;
August ziesmer, $1,000 and Stechno
& Kampf, $500. .~s.
The railway claimed that the storm
was in the nature of a cloud burst
and that they were not liable Tor
such an unusual occurrence, and
claimed further that the calvert had
become -clogged with debris. The
plaintiffs maintained that although 2
four-foot ;culvert was perhaps ample
when constructed several years aago,
the building Of sidewalks and erec-
tion of !large buildings had lessened
the absorption Of moisture and made
the surface overflow correspondingly
greater.
It is expected that the decision by
the supreme court will end the mat
ter, and that the railway company
will settle with the parties who filed
claims. It is possible that they may
ask for a Re-hearing, but not Thought
probable.
Murtha Il Sturgeon and Thomas II.
Pugh were attorneys for the plain
fiffs and respondents, while Watson &
Young and Il. T. Conmy Of Fargo
handled the case for the railway.
Following is a portion of the sylla-
bus of the supreme court, opinion by
Jaadge BRUCE:
/. Both under the civil law rule
as to surface waters and under the
so-called common law or common
enemy rule, a natural drainway must
be kept open to carry the water into
the streams and the lower estate is
subject to natural servitude for that
2. Proof that drain or ditch re-
ceives the surface water OF a drain,
age area of some 168 acres, is several
feet in depth, has well defined chan
mel, and though it has grass growing
at it's sides, has a space at the bot
tom 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 justify the jury
in holding that such drain or ditch is
q natural drainway or drainage chan
mel and this thongh there is no evl-
dence that the water ran in the
same at all times but merely that
the drain or ditch served to convey
the melting SHOWS and, surface waters:
8, It is the duty of lower land
owner who builds a structure across
natural drainway to provide for the
natural passage through such obstruc-
tion of all of the water which may
be reasonably anticipated to drain
therein, and this is a continuing duty.
a. Where there is evidence which
tends to show that drainway is
natural drainway and that it has
been obstructed by lower land
owner and that such obstruction oc-
cagioned the flooding of and injuries
to the property OF an upper lano
owner, the burden OF proof Is upon
the defendant or lower land owner
when sued for such damages, to
prove that the storm which occas-
Toned the flood was unprecedented
that it could not have been reasonably
anticipated and need not have been
provided against.
s. Evidence examined. and held
not to be such as to Justify holding,
as matter of law, that the storm
n question was SO unprecedented that
II should not have been anticipated
hut rather that the fact was one fo1
the jury to pass upon. ,-,..,3
$6. Extraordinary or unprecedented
floods are floods which are Of sucn
,unngual occurrence that they could