Opinion
September 11, 1957 —
October 8, 1957.
APPEAL from a judgment of the circuit court for Milwaukee county: HARVEY L. NEELEN, Circuit Judge. Affirmed.
For the appellants there was a brief and oral argument by Paul Pike Pullen of Milwaukee.
For the respondent there was a brief by Quarles, Spence Quarles, attorneys, and E. H. Borgelt, Kurt H. Frauen, and Anton Motz of counsel, all of Milwaukee, and oral argument by Mr. Motz.
Action to compel defendant railroad to provide plaintiffs' lands with certain drainage facilities. Judgment for defendant was granted upon a special verdict which determined essential facts in defendant's favor. Plaintiffs submit that the trial court erred in its instructions to the jury and in question 1 of the special verdict.
This is a companion case to Laur v. Milwaukee, ante, p. 561, 85 N.W.2d 349. The two cases were tried together. The statement of facts in the Hackbarth action (which see) is pertinent here and will not be repeated but there are additional facts not material to that action but material to this one. Appellants state those facts thus:
"In 1951 Mrs. Hackbarth entered into a contract with the city of Milwaukee whereby the city of Milwaukee commenced to fill in the Hackbarth land to the elevation of the elevated right of way. The filling-in operation commenced at the southeasterly corner of the Hackbarth land and continued in a westerly and northwesterly direction until the Hackbarth land was filled in to an elevation equal to that of the elevated portion of the railroad right of way. The filling operation extended up to the boundary line between the Hackbarth property and the railroad right of way. During the course of filling operation water collected in the unfilled portion of the Hackbarth property and on the unelevated portion of the railroad right of way covering the culvert. The filling operation on the Hackbarth property was completed in 1952.
"In 1952, shortly after the filling operation was commenced on the Hackbarth property a portion of the Laur property became flooded. As the filling operation on the Hackbarth land continued the flooding of the Laur property increased. In 1953 the flooding of the Laur land continued. In 1954 the Chicago North Western Railroad authorized the city of Milwaukee to fill in the unelevated portion of the railroad right of way to the southwest of the elevated portion (being that portion of the right of way lying between the elevated portion of the railroad right of way and the Hackbarth property). The filling in of said portion of the right of way resulted in covering up the southwesterly end of the culvert.
"In 1954, after the southwesterly end of the culvert was covered up, the Laur property was flooded to a greater extent than it had been in the years 1952 and 1953."
At the close of trial the plaintiffs requested the following instructions:
"You are instructed that the law provides that whenever any railway company shall construct and maintain any road grade through, over, and across any marsh, lowland, or natural depression over which surface water naturally flows, and the stopping of said flow by said road grade causes any land to be flooded or otherwise damaged, such railway company shall construct, provide, and at all times maintain sufficient culverts to allow free and unobstructed flow of said water from said lands and to prevent said lands from being flooded or otherwise damaged by such water. Failure to do so constitutes negligence and shall subject the railroad to liability for all damages caused by reason of such failure or neglect.
"You are instructed that the legal obligation of the railroad relates to the drainage of surface water which naturally flows, filters, or percolates over or through the land. The railroad must provide drainage over or through the roadbed, sufficient to conduct away in safety the rainfall which usually occurs in this climate. In this case the plaintiff is entitled to be provided with drainage facilities under or through the roadbed in question which will be adequate to maintain the same drainage that existed before the construction of the roadbed and the construction of the culvert."
Instead of the instruction requested the court gave the following:
". . . In this case the plaintiffs Laur are entitled to be provided with drainage facilities under or through the roadbed in question which will be adequate to maintain the same drainage that existed just before the obstruction of the culvert. . . .
"If there was not a natural flow of surface water or percolation just prior to the obstruction of the culvert, then there is no duty of the railroad to maintain the same. . . .
"You are instructed that even if there was a natural flow of surface water through the culvert from the Laur land to the Hackbarth land just prior to the obstruction, the failure of the defendant railroad to keep the culvert open cannot be considered an efficient cause of any damage to the plaintiff, Laur, if said damage would have taken place if the culvert had remained open and also if the acts of third parties, not parties to this action, prevented the culvert from operating in allowing the free and unobstructed flow and percolation of said water from said lands."
The statute involved, sec. 88.38, is the following:
"CULVERTS AND OUTLETS TO PERMIT NATURAL DRAINAGE. (1) Whenever any county, town, city, village, railway company, or the state highway commission shall have heretofore constructed and now maintains or hereafter shall construct and maintain any public highway or road grade through, over, and across any marsh, lowland, or other natural depression over or through which surface water naturally flows and percolates, and the stopping of the said flow and percolation of said water by said highway or road grade cause any crop or land to be flooded, water-soaked, or otherwise damaged, such county, town, city, village, railway company, or the state highway commission shall construct, provide, and at all times maintain a sufficient ditch or ditches, culverts, or other outlets to allow the free and unobstructed flow and percolation of said water from said lands, and to prevent said lands from becoming flooded, water-soaked, or otherwise damaged by said water. The foregoing shall not apply to public highways or road grades now or hereafter used to hold and retain water for cranberry purposes.
"(2) Any county, town, city, village, or railway company which shall fail to provide such necessary ditches or culverts or other outlets shall be liable for all damages caused by reason of such failure or neglect."
The effect of plaintiffs' requested instruction, particularly in its last sentence, is to inform the jury that if the railroad embankment once obstructed natural drainage, the railroad forever after is obligated to do such things as may be necessary to drain plaintiffs' lands as thoroughly as they were drained before there was any construction by the railroad.
There is no contention that the culvert did not provide the Laur lands with adequate drainage before the Hackbarth lands were filled. The court's instruction, applied to the evidence before the jury, told the jury that the railroad must give plaintiffs not such drainage as they had when the Laur and Hackbarth lands were in their original state but such drainage as the Laurs enjoyed after the natural flow of surface water had been altered by the change in elevation of Hackbarth's property. If, as Laur, himself, testified, after the Hackbarth fill was commenced the course of drainage was reversed and surface water then flowed through the culvert onto Laurs' own property, it was Hackbarth's legal alterations in her land which caused Laurs' lands to be flooded, not the presence of the railroad embankment. Surface water did not then flow across the depression from Laur to Hackbarth nor was a flow in that direction stopped by the railroad embankment. Neither did the culvert any longer provide an escape for Laurs' surface water. Under such circumstances the statute does not require the railroad to maintain it or to substitute other drainage facilities for Laurs' lands. We consider the court's instruction, the evidence being what it was, correctly informed the jury of the plaintiffs' rights and defendant's obligations.
The trial court submitted this question to the jury:
"Question No. 1: Just prior to the time that the railroad culvert between the Hackbarth and the Laur land was obstructed, did surface water naturally flow and percolate from the Laur land toward the Hackbarth land?"
In view of what we have just said concerning the instruction to the jury we believe this inquiry correctly propounded the question upon which all else depends. The jury answered it, "No." The evidence overwhelmingly supports the answer. Without such flow the railroad was not obliged to maintain the culvert, nor did its obstruction cause the damage of which plaintiffs complain.
The question which plaintiffs requested and which they allege it was error not to submit was:
"Question No. 1: Did the defendant, Chicago North Western Railway Company, fail to, at all times, maintain a sufficient ditch or ditches, culverts, or other outlets to allow the free and unobstructed flow and percolation of surface water from the lands of the plaintiffs?"
An affirmative answer to this question would be immaterial unless the flow from the lands of plaintiffs was toward the Hackbarth property and was obstructed by the railroad embankment and the closed culvert. Since the preliminary question was answered in the negative no duty devolved upon the railroad to provide plaintiffs with drainage facilities. No error appears in the refusal of the trial court to include the requested question in the verdict.
Plaintiffs also submit that the court erred in denying their motion to change the answer of question 1 from "No" to "Yes." The answer as given conforms to the evidence. We find no error.
By the Court. — Judgment affirmed.