
    Chicago, Rock Island & Pacific Railway Company v. William S. Ely.
    Filed December 21, 1906.
    No. 14,342.
    1. Railroads: Drains: Damages. Damages are recoverable by a landowner against a railway company for negligently maintaining an insufficient culvert or drain in an embankment, whereby his lands are flooded, although damages may have been recovered by plaintiff or his grantor for the location of the road, because the damages then recoverable were to be estimated upon- the theory that the road would be constructed and maintained in a reasonably propel and skillful manner. Chicago, B. I. & P. B. Co. v. Anclreesen, 62 Neb. 456, followed and approved.
    2. Cases Distinguished. Gartner v. Chicago, B. I. & P. B. Go., 71 Neb. 444, and Fremont, JS. & M. V. B. Co. v. Gayton, 67 Neb. 263, examined and distinguished.
    Error to the district court for Sarpy county: Abraham L. Sutton, Judge.
    
      Affirmed.
    
    
      M. A. Low and Wool-worth, & McHugh, for plaintiff in error.
    
      H. Z. Wedgwood, contra.
    
   Oldham, C..'

This was an action instituted by the plaintiff, as lessee of á farm situated in Sarpy county, Nebraska, for damages to his growing crops caused by the overflow of a running stream. The grounds of the action were that the defendant railway company negligently constructed its roadbed so that it obstructed- the channel of a stream of running water, and that by virtue of this obstruction the waters of the stream were dammed up and caused to flow back and remain on the land where the crops were growing, thereby causing a partial loss of all the crops growing on the leased premises. The answer of the company Avas in the nature of 'a general denial and a plea of estoppel, by reason of the fact that the defendant company had purchased the right of way across the premises from plaintiff’s lessor, who was the oivner of the land. On issues thus joined there was a trial to the court and jury, and a verdict and judgment for the plaintiff. To reverse this judgment defendant brings error to this court.

Thé only contention urged by the defendant railway company is that an action for damages for the overflow of the crops cannot be maintained by the lessee of the premises, for the reason tliat the obstruction is a x>erinanent one which, unless interfered with by the hand of man, would continue indefinitely, and for this reason all damages, both past and prospective, are recoverable in but one action which must he instituted by the owner of the freehold. In support of this contention we are cited to the case of Gartner v. Chicago, R. I. & P. R. Co., 71 Neb. 444. In this case the question at issue was whether or not a judgment, rendered in favor of the owner of the land for damages to the land occasioned by the construction of a permanent embankment in the building of the railway, was a bar to a similar action for damages to the land instituted by a subsequent purchaser. It was held that the damages to the land were indivisible, and a judgment therefor was binding on the plaintiff and his privies, but the question of damages to growing crops because of insufficient drainage Avas not involved in the controversy. The other case relied on is that of Fremont, E. & M. V. R. Co. v. Gayton, 67 Neb. 263, which was an action for damages to groAving crops. But in this case the insufficient drainage and borrow-pits AArere all constructed on the lands 0AArned by the rail-Avay company, and afterwards certain of these lands Avere conveyed to plaintiff’s grantor and the point determined Avas that the grantee took the land subject to the visible burdens attached thereto at the time of the purchase. It was held that, “where a railroad company constructs its road across its own land and in so doing erects embankments and bridges and digs ditches and borrow-pits, by reason whereof surface water is or may be collected and discharged upon a particular portion of the track, subsequent grantees of that portion cannot maintain an action against the company by reason of the maintenance of such embankments, bridges, ditches and borrow-pits in their original condtion.”

It is clear neither of these cases is applicable to the facts in the case at bar, because this is not an action for injury to the land, but the rather for injuries to growing crops, which are admitted to be the property of the plaintiff, who paid a cash rent for tbe use of tbe premises. And, again, tbe crops were not raised on lands wbicb bad been purchased by plaintiff’s lessor, or any one else, from the railway company after tbe construction of tbe bridge and culvert complained of. We think that tbe undisputed facts place this case clearly within tbe rule announced in Chicago, R. I. & P. R. Co. v. Andreesen, 62 Neb. 456, in which it was said: “Damages are recoverable by a landowner against a railway company for maintaining an insufficient culvert or drain in an embankment, whereby bis lands are flooded, although damages may have been recovered by plaintiff! or bis grantor for tbe location of tbe road, because tbe damages then recoverable were to be estimated upon tbe theory that tbe road would be constructed and maintained in a reasonably proper and skillful manner.” Tbe doctrine here announced was adhered to in tbe later case of Chicago, B. & Q. R. Co. v. Mitchell, 74 Neb. 563.

We are therefore of opinion that tbe trial court was fully justified in overruling defendant’s request for a peremptory instruction directing a verdict in its favor, and we recommend that tbe judgment of tbe district court be affirmed.

Ames and Eppekson, OC., concur.

By tbe Court: For tbe reasons given in tbe foregoing opinion, tbe judgment of the district court is

Affirmed.  