Soules v. Northern Pacific Railway Co.

157 N.W. 823, 34 N.D. 7, 1916 N.D. LEXIS 8

• Court: North Dakota Supreme Court
• Decided: January 28, 1916
• Status: Published

Opinion

Bruce, J.

(after stating the facts as above). It is not, we believe, contended in this case that the flooding of the plaintiffs’ premises in question was occasioned by the obstruction of a flowing stream, bat rather by the obstruction of a natural water course which served as a natural drainage for surface and storm waters, and which on the occasion in question was flooded by a heavy rain storm which occurred on the night of July 28, 1914, and in the early morning of July 29, 1914.

“Under the common-law rule which exists in many jurisdictions, surface water is regarded as a common enemy, and every landed proprietor has the right, as a general proposition, to take any measures necessary to the protection of his- property from its ravages, even if in doing so he prevents its entrance upon his land and throws it back upon a coterminous proprietor. The damage resulting in such case is regarded as damnum absque injuria, affording no cause of action.” See 30 Am. & Eng. Enc. Law, 2d ed. 330; Walker v. New Mexico & S. P. R. Co. 165 U. S. 593, 41 L. ed. 837, 17 Sup. Ct. Rep. 421, 1 Am. Neg. Rep. 421.

“Under the rule of the civil law . . . the right to drain surface waters is governed by the law of.nature, as between the owners of adjacent lands, and the lower proprietor is bound to receive the surface waters which naturally flow from the land above, and cannot do anything to prevent such flow which will cast it back upon the land above.” 30 Am. & Eng. Enc. Law, 2d ed. 326; Shahan v. Alabama G. S. R. Co. 115 Ala. 181, 67 Am. St. Rep. 20, 22 So. 449.; Gillham v. Madison County R. Co. 49 Ill. 484, 93 Am. Dec. 627; Alton & U. A. Horse & Carrying R. Co. v. Deitz, 50 Ill. 210, 99 Am. Dec. 509; see also discussions in Hannaher v. St. Paul, M. & M. R. Co. 5 Dak. 1, 37 N. W. 717, and Carroll v. Rye Twp. 13 N. D. 458, 101 N. W. 894.

In North Dakota we have not as yet committed ourselves to either rule, as a choice has not as yet been necessary in any of the cases argued, and the court has naturally hesitated in foreclosing a question whose determination should depend upon considerations of public expediency and necessity, and be considered in the light of the peculiar topography and climatic conditions of the state, and to whose wise solutions every days brings more light and the results of a larger body of accumulated experience. The question, though, has been incidentally presented and discussed. See Hannaher v. St. Paul, M. & M. R. Co. and Carroll v. Bye Twp. supra.

Nor is it necessary to adopt either rule in the case which is before us, as we are convinced that there is in the record and that there was properly submitted to the jury, evidence which tends to show that the swale, depression, or whatever it may have been in the case before us, was a “natural drain way.” If it was a natural drain way, it is immaterial whether the so-called common enemy or the civil-law rule as to surface waters prevails in North Dakota, as both “under the civil law and the-English common . . . [enemy theories] the rule is that the natural drain ways must be kept open to carry the water into the streams, and that the lower estate is subject to a natural servitude for that purpose.” 3 Farnham, Waters, p. 2555.

The building of the plaintiffs faced south on Villard street. Villard street runs east and west and a block or so north of and parallel to the railroad tracks. There is evidence in the record tending to show that the ditch or ravine which runs from Villard street to the railroad track, and which empties through the culvert of the railway’company and underneath its tracks, had been in existence for some thirty years, and, although only extending a short distance north of Villard street and some three or four blocks north of the railroad track, served as a natural runway or drainage for a larger natural drainage basin of some 160 acres which extended to the northeast. There is also evidence which tends to show that this ditch has now, and for a long time prior to the flood in controversy had, a well-defined channel, and that though grass grew at its sides, that grass had at its bottom been worn away to a breadth of 3 or 4 feet by the running waters. It is true that there is no evidence or pratense that the water ran in this ditch all of the time or even usually ran in this ditch, but there is evidence that it ran therein whenever there were heavy rains and when the snow melted in the spring. Such being the case, it is clear that the ditch or ravine, though not a stream, was nevertheless a natural drain way which drained a more or less extended area of land or drainage basin into the Heart river. It is clear, also, that though the railway company had the right to build an embankment across it, it nevertheless owed the duty to the landowners in the drainage basin to do so in such a manner that the water which could be reasonably ■anticipated to flow therein and to be drained thereby could be as well accommodated as before the construction of its improvements. This is true under both the civil law and the so-called common-enemy theory ■of surface waters. See Farnham, Waters, p. 2555. “In all broken country,” says this author (page 2511), “there are gullies, ravines, or swales which in many cases, when the land was covered with woods, formed the beds of flowing streams which gradually dried up as the woods were cleared away, but which are natural drains in which water runs in every time of heavy rain. In case one of these drains is stopped, the natural result is to pond the water above the point of stoppage, and compel it to find another outlet, or to stand until it is absorbed or ■evaporates. This is a distinct injury to the upper owner without any corresponding benefit to the lower one, and it should not be permitted to be done.” This is undoubtedly the prevailing rule in America, and is both the civil-law and the common-enemy rule, though not a few writers and courts have confused the terms “common enemy” with the term “common law,” and have imagined that what is termed “the common-enemy theory,” and which relates merely to what are, strictly speaking, surface waters and waters which do not flow in defined channels, applied at the common law generally to all non-navigable waters.

The reason' for what may be termed the prevailing American rule, and which we here adopt in North Dakota, is well stated by Mr. Farnham on page 2599 of his excellent work on “Waters and Water Eights.” “The question of the right to obstruct a natural drainage channel,” he says, “has been needlessly complicated with the further question whether or not a water course existed. The rules with respect to water courses form a distinct class by themselves, and were formulated to conserve the interests of the riparian owners. On the other hand, the question of drainage involves not only the welfare of the individual landowner, but also that of the community in so far as its healthfulness and prosperity depend upon relieving land of stagnant water and improving its productiveness. Before man owned any parcel of land, nature had impiressed upon it certain characteristics. So far as these can be changed without interfering with the use or enjoyment of neighboring property, they may be changed at will. But, so far as one parcel has been subjected by nature to a servitude in favor of an adjoining parcel, the enjoyment of which will be materially injured by destroying the servitude, it would seem that the rule by which a purchaser of -property is bound by its condition when he acquires title would prevent the destruction of such servitude. In order to be within the operation of this rule, . . . the great weight of authority is in favor of the proposition that a lower proprietor cannot place any obstruction in an obvious drainage channel which has been formed by nature and carries the water from a higher to a lower estate. Some courts have reached the same result by holding that channels formed by surface water might be water courses, and have a2)plied to them the rule governing the obstruction of such courses, and in some cases there is no doubt that channels which now carry merely surface water were once living streams. When the country was covered with forest so that the ground was more nearly saturated with water, springs came to the surface and fed streams which flowed more or less constantly down these channels, but, as the land was cleared and brought under cultivation, the springs gradually lost their strength and finally disappeared, so that the channels which formerly carried the streams flowing from them now receive only the water which comes from surface drainage. But there is no reason why, if the rule of water courses rather than that of drainage is to be applied, it should not be applied to this class of channels. That these drainage channels cannot be obstructed is supported by the great weight of authority. It is the rule in England, Canada, Ireland, Alabama, California, Delaware, Georgia, Illinois, Iowa, Kentucky, Louisiana, Maryland, Michigan, Minnesota, Mississippi, Nebraska, Nevada, New Jersey, North Carolina, Ohio, Oregon, Pennsylvania, Tennessee, Texas, Virginia, Vermont, and West Virginia. And in Arkansas no obstruction to the flow of surface water is permissible if it can be avoided by reasonable care and expense. To reach their conclusions, some of the courts above named have attempted to show that the channels in which the water was running were water courses', but they were not water courses within the rule governing riparian rights; and the attempt to demonstrate the existence of a water course was made necessary by the disastrous effects which would attend the opposite holding. In fact, when surface water has united to form a stream the effect of damming it back is temporarily as bad as the damming back of a water course, and similarity in the effect absolutely demands the application of the same rule to each. And, in order to do so, the courts which have not perceived the full meaning of the civil-law rule as to drainage have attempted the makeshift of bringing the particular stream within the rule governing the stoppage of water courses by showing that they were in fact such, whereas the only similarity was in the result of stopping a present flow. Practically all of the courts admit that there may be a flow of surface water of such magnitude that it cannot be stopped; but natural drainage channels are allowed to be closed by the Supreme Court of the United States when the question comes before it as a common-law question; and by the courts of Indiana, Kansas, Maine, Massachusetts, Missouri, New York, South Carolina, and Washington. The Kansas court has intimated that, if the channel approaches the nature of a water course, there is no right to dam it up. And in Missouri a statute has been passed giving the right to cast water into natural depressions which act as drains. Of the other courts above referred to, the Supreme Court of the United States and the courts of South Carolina and Washington placed their rulings expressly upon the ground that the common law had been adopted by statute, and that therefore there was a right to dam back the water. But, it having been demonstrated in a preceding section that by the common law there is no right to dam back the water which is flowing in a definite channel, those decisions are based upon a misconception and should have been the other way. Some courts have not yet expressed themselves upon this question, and some appear to be in a class by themselves, so that they are not properly included in either list. Among these is the Wisconsin court. The rule which obtains in that state, as well as the course of a decision in Minnesota, is treated in a separate section. This conflict in opinion arises in most cases out of a failure to understand the civil-law rule, and in attempting to determine drainage rights by the rules applicable to water courses. As has been seen, the civil-law rule is merely that when the water has its course regulated from one ground to another, — that is, when it has taken a definite course in a definite channel, — it cannot be stopped up. Practically all the courts, except the Supreme Court of the United States .and the courts of Indiana, New York, Missouri, Wisconsin, and the lower courts of New Jersey, agree in this rule, but,-in applying it, they differ somewhat in their conclusions, the difference depending largely upon how far each court has embraced the idea that a water course must, in fact, exist before the rule can be applied. As will be seen in the succeeding sections, there is no right anywhere to the continued flow of water which has not taken a definite course, but which spreads ■out over the surface of the ground. And, if the courts, would recognize the fact that the right to the flow of the water which has taken a definite course is a rule of drainage, and not of water courses, most of the difficulty which they have experienced would disappear. The rule of drainage applies if the water has taken a definite course, although the flow is not strong enough to cut the sod or form a- trench in the soil, it is enough that a natural depression forms a channel for the stream.” •See also Quinn v. Chicago, M. & St. P. R. Co. 23 S. D. 126, 120 N. W. 884, and note thereto in 22 L.R.A.(N.S.) 789; Chicago, R. I. & P. R. Co. v. Groves, 20 Okla. 101, 22 L.R.A.(N.S.) 802, 93 Pac. 755.

Again, in Jungblum v. Minneapolis, N. U. & S. W. R. Co. 70 Minn. 153, 72 N. W. 971, which seemingly overruled the prior decisions of that tribunal, the supreme court of Minnesota said: “There was evidence .given on the trial on behalf of the plaintiff tending to show that this depression was the usual and natural course or channel along which the surface water was accustomed h> flow, before the roadbed was constructed, for a mile or two east of the roadbed, and that the channel bears marks of water having flowed through it. Whether this depression is a natural water course, within the strict definition of the term, we need not determine; for the evidence justifies a finding that it was the usual and natural channel for surface water, and offered a reasonable way for the defendant by the construction of a culvert to dispose of the •surface water without injury to any landowner. The trial court submitted this question to the jury in these words: ‘If the jury finds from the evidence that the defendant might reasonably have constructed a culvert through its roadbed, and thereby have conveyed, the water in question through its natural and usual channel from its right of way, without injury to any other landowner, and that it neglected to do so, but that it unnecessarily or unreasonably drained the water upon the plaintiff’s land, to the plaintiff’s injury, then the plaintiff is entitled to recover.’ ”

Being, then, a natural drain way, it was the duty of the defendant railway company to accommodate itself to and to provide for the undisturbed passage through it of all of the water which was or might be reasonably anticipated to drain therein, and this duty was a continuing •duty. See State ex rel. Trimble v. Minneapolis, St. P. & S. Ste. M. R. Co. 28 N. D. 621, 150 N. W. 463. The question to be determined is whether there is competent evidence in the record, and which was properly submitted to the jury, which tended to show that this duty had not been complied with, and that the damage to the plaintiffs’ and respondents’ property was occasioned by this noncompliance, or whether, as contended by defendant and appellant, the uncontradicted evidence showed that the culvert was in every way adequate for all flowage that could or should have been anticipated, and that the flooding of plaintiffs’ premises was either occasioned by an extraordinary downpour or cloudburst which it was not the duty of the deféndant- to anticipate, or by the blocking of the channel by a floating sidewalk or some other obstruction which it was not the duty of the defendant to guard against or to anticipate. We are satisfied that there was such evidence, and the trouble with defendant’s defense is that, it once being established that the flooding of plaintiffs’ premises was occasioned by the inability of the culvert to carry off the water, and of this we hardly think defendant will contend that there is not at least some evidence, the burden is upon it, and not on the plaintiff, to show that the storm was so unusual and extraordinary that it need not have been anticipated.

Even if we admit that the evidence of plaintiffs’ witnesses as to the fact that in the past there had been downpours of equal violence is open to the objection that it was not given by scientific men and based upon scientific data, and that it must have been to a greater or lesser extent an expression of opinion merely, still defendant’s nonscientific testimony was open to the same objection, and was equally unreliable. The fact remains that what little scientific data defendant did. furnish was absolutely inconclusive, and could well have been repudiated by the jury. The defendant, in short, attempted to show, and no doubt did show, by the testimony of the superintendent of the weather bureau, that 4.03 inches of rain fell from 1 o’clock in the morning until 10 o’clock in the forenoon. It also showed that the weather bureau was first established at Dickinson in 1892, and that the largest quantity of rain that had ever fallen in any twenty-four hour period since that time was on May 22, 1903, when 2.6 inches fell; that the average annual precipitation; in this vicinity was 15.4 inches and that the average rainfall per twenty-four hour period in the last ten years was 2%oo of an inch, without counting the days it did not rain. The trouble with this evidence is that there are no records of the precipitation during any hour or series of hours during any of the years mentioned, but only the rainfall during twenty-four hour periods, and it may very well have been that, though the rainfall in 1914 during a twenty-four hour period^was very much greater than that of any twenty-four hour period in the past; that in the past there had been during certain hours and for limited times much greater downpours. This is made perfectly clear by the testimony of the superintendent of the weather bureau to the effect that about two years before the trial there had been a downpour of T£ inches of rain in a period of only fifteen minutes. It is also worthy of notice, and a fact that could well have been considered by the jury, that although it was admitted that official and scientific records were taken at the weather bureau at 6 o’clock in the morning, and although there was testimony to the effect that, the flood had begun to abate after that time, in so far at least as plaintiffs’ property was concerned, no attempt whatever was made to introduce these records in evidence, and the defendant, instead, merely relied for his scientific data on the remembrance of the witness Waldron as to the observations he had made four hours later and at 10 o’clock in the morning. Even if his remembrance and observations were correct, he testified merely as to the record of a nine-hour rainfall. The testimony of the witnesses Leonberger and Butler would lead us to believe, or at any rate the jury was justified in believing from this testimony, that the flood was at its height, as far as the storm was concerned, at about 3:30 in the morning, while the witness White testified for the defendant that there was an extra heavy rainstorm at 6 o’clock. It is also clear that records which were made at 6 :30 a. m. could easily have been obtained, as the weather bureau was only 2 miles from the city of Dickinson, where the trial was held. • ~

We hardly see, therefore, that the defendant has met the burden of proof; that is, of showing the extraordinary nature of the storm, and that the same could not have been anticipated.

We do not agree with its counsel, at any rate in this western country, that the fierceness and intensity of a storm must be determined by the amount of rain which falls in any given twenty-Lour hour period, or with his conclusion that because in the past, no such volume of rain had fallen in any twenty-four hour period as fell in the twenty-four period and prior to 6:30 o’clock in the evening of July 28, 1914, that there had not been prior to such times as equally violent storms or downpours extending over lesser periods, and it is a matter of common knowledge that it is the cloudburst or sudden downpour that taxes the requirements of drains and sewers.

As far as the severity of the storm is concerned and its unusual character, Nelson G. Lawrence testified for the defendant that he had lived in Dickinson since 1883; that he remembered the storm of July 28, 1914; that he got up at about 1 o’clock; that the water covered the streets; that it was the worst storm that he had ever known since he had been there. He, however, testified on cross-examination that he could remember nothing whatever of the storms of 1912 or 1909. He also testified that storms in the vicinity were usually of short duration.

Oliver Whaley testified that he had lived in Dickinson since January 1, 1911; that he got up in the neighborhood of 1 o’clock; that the water covered the sidewalks on Second avenue; that there was a recession of water about daylight, he thought; that there were three periods of severity between 1 and 7 o’clock; that it was an unusually severe rain storm; that he had never seen one that would compare with it for severity for the same length of time; that the storms were generally of short duration; that this storm was severe and of long duration ; that he observed the storm between 1 and 8 o’clock. He, however, testified that in the past he had often seen the waters cover the crossings and come up on the sidewalk on the south side of his house,' and this had been so during the last year, the water extending a distance of 10 or 12 feet north and about the same distance east on a low corner; that on the morning of the storm when he went down town, the crown or the center of the street was in view. The gutters were full of water; perhaps 10 feet of the center of the road was visible immediately in front of his residence and to the east of Second street.

The witness Bert A. Oonclit testified that fie was a civil engineer; that the drainage area of the district was 168 acres; that the elevation in the center of Villard street was 99.75 feet and the elevation of the property line and the sidewalk in front of plaintiffs’ store was 99.55 feet; that the elevation taken 15 feet to the west of the building' was the same as in front of the store; that on account of the fact that, the lot was somewhat lower than the center of the street the water coming down that street, if the gutter was overflowed, would cover the lots.

The witness F. J. Taylor testified that the tracks were constructed according to the most-approved method; that the 48-inch pipe which extended under the track was sufficient to take care of a rainfall of 3 inches per hour. That with a rain-fall of 3 inches per hour there would be a run-off of 123 cubic feet per second, and that 'the culvert in question would carry off 177 cubic feet per second. (See testimony given before.)

The witness Waldron also testified that he thought the precipitation for duly 26, 1914, was 1.16 inches; that he could not say accurately, but he thought it rained two or three hours.

Q. Well, then, you do not know of your own knowledge how long a time it rained ?

A. It could not have been much more than that. It commenced to. rain at 1 or 2 o’clock in the afternoon. An observation was taken at 6.

Q. Were you out of town during the 28th ?

A. Part of the time.

Q. What part of the time ?

A. I got here on delayed No. 1, about 10 o’clock in the morning.

Q. About 10 o’clock ?

A. No, it was earlier than that, about 9 o’clock or a little after nine..

Q. So that you weren’t here during the early morning hours ?

A. No, sir.

Q. From 12 to between 9 and 10 ?

A. No.

Q. Were you here during the 27th, the day preceding?

A. No, I wasn’t, a part of the day I was.

Q. When did you leave ?

A. I left on No. 8 in the morning. The train was on time.

The witness Kittleson testified that fie fiad been in the country for seven years; that be got up on the morning of the 28th at about 1 o’clock and watched the rain; that he characterized the rain as compared to other rains as equal; that he would not testify that he had seen a rain of this amount and extending over this period of time in this-country before; and in answer to the question, on cross-examination:. “You mean to testify^ don’t you, Mr. Kittleson, that you have seen rains wdiere the rain came down just as heavy at one time, is that what you want to testify? You don’t mean to testify that you have-seen a rain of this amount and extending over this period of time ? A. No, sir.” .He specified that he had seen a similar rain- and as heavy a downfall about July the 11th, 1912.

The witness Hughes testified that he had lived in Dickinson for niné years last past; that he observed the rain; that he had seen other-rains where there was as much rainfall in the same length of time, on two occasions anyway — one in the summer of 1912 — July, he thought. He did not measure the amount of rain that fell on these occasions; that he judged by the amount of water that was on the ground, but the storm in July, 1911, lasted about half an hour.

There is also evidence that the ditch or natural drain way before it enters into the culvert was about 2 or 8 feet at the bottom-and 6 or 7 feet at the top, and that if the water was level and there was l%o feet of water at the property line in front of Soules & Butler’s store, there would be a little better than 2 feet of water over the top of the culvert. Assuming this to be true, it is perfectly clear that if the-original pile bridge had been maintained, or the culvert had approximated the size and volume of the original drain or ditch, that the water might very well have all been carried off. These facts were, at any rate, for the jury to pass upon, and we cannot say from the record that they were not right in holding that it was the lack of capacity in the culvert to carry off the water that was the proximate cause of the damage, or that similar downfalls of rain had not occurred in the past.

We have carefully examined the cases which are cited by counsel for appellant on the question of the proof and as to what constitutes unprecedented storms, but are merely convinced by them that in the case at bar the matter was one for the jury to pass upon. All that. the cases of Pittsburg, Ft. W. & C. R. Co. v. Gilleland, 56 Pa. 445, 94 Am. Dec. 98, and Ohio & M. R. Co. v. Thillman, 143 Ill. 127, 36 Am. St. Rep. 359, 32 N. E. 529, held was that it was error to instruct the jury that the fact that in the one case the three storms and in the other the two storms which occasioned the damage occurred in rapid sequence rendered them usual and not unprecedented, and with these holdings we can take no exception, as the courts in both cases expressly stated that the matters in controversy were for the jurors themselves to consider and to pass upon. In the case of Greiner v. Alfred Struck Co. 161 Ky. 793, 171 S. W. 405, the court held that the proof conclusively showed that the storm which had lasted for two days was so unusual or extraordinary that it could not have been guarded against by ordinary prudence. In it, however, although the witness testified that there had been as great a flood in a previous year, this evidence was not only disputed by the records of the weather bureau, but the witness himself admitted that in the preceding year the water course did not overflow its banks so that there was no reason for the defendant to anticipate that it would do so on this particular occasion. In the case at bar there is evidence which tends to show that on previous occasions there had been other floods, though not as extensive, in which the culvert had been insufficient.

All that the other cases cited by counsel for appellant do is to emphasize and repeat in various forms the general and- well-established propositions that a railway company is not liable for damages occasioned by unprecedented storms; that even if a sewer is defective the defendant cannot be held liable unless that defect is the real and producing cause of the injury, and that even though there is negligence on the part of the defendant, if the act of God is so overwhelming as of its own strength to produce the injury, the defendant cannot be made responsible; that it is not the duty of the defendant to prepare against unprecedented storms, and that where it appears that the storm is unprecedented the burden of proof is upon the plaintiff to show that the damage would not have resulted except for defendant’s negligence.

We may concede each and all of these propositions, yet that concession would not justify a reversal in the case which is before us. The cases cited by counsel themselves show that the burden of proof is upon the defendant to prove the unprecedented nature of the storm. See Memphis & C. R. Co. v. Reeves, 10 Wall. 189, 19 L. ed. 912. And on this question there was a clear conflict in the evidence which left it for the jury. On the question of negligence and the adequacy of the culvert, there was also a conflict, and this was also a question for the jury. Almost all of the cases cited by counsel pass upon instructions which took these matters from the jury. None of them seem to cover a case such as that before us, where the jury was properly instructed and where there is a serious question as to whether the railway company has met the burden of proof of showing the unprecedented nature of the storm. The term “extraordinary floods” has been defined as meaning “such floods as are of such unusual occurrence as could not have been foreseen by men of ordinary experience and ordinary prudence. Ordinary floods are those the occurrence of which may be reasonably anticipated from the general experience of men residing in the region where such floods happen.” Gulf, C. & S. F. R. Co. v. Pool, 10 Tex. 113, 8 S. W. 535; 3 Words & Phrases, 2628. The question to be decided was: Considering the rains of the past, the topography and climatic conditions of the region, and the nature of the drainage basin, the fact that in the past heavy downpours had occurred and on one instance 1-J inches of rain had fallen in only fifteen minutes of time, the baked and arid nature of the district, its absence of trees or anything that would prevent water from rapidly running off, would and should a reasonably prudent man have foreseen the danger and provided against it ? We cannot say that the proof was so conclusively in the negative that the question became one of law merely, which had to be decided in favor of the defendant, and that it was not one which was properly submitted to the jury.

Nor can we say that the proof otherwise shows that the culvert was sufficient, and that the flooding of the property of plaintiffs was, in fact, occasioned by the fact that the property was situated in a depression and lower than the street, and not by the smallness of the culvert. There is evidence, it is true, that the center of Villard avenue and in front of plaintiffs’ property was some .21 of a foot above the property line of plaintiffs; and that the water coming down the street would, if the gutters were overflowed, flow upon plaintiffs’ property. It is to be remembered, however, that west of plaintiffs’ property was Second avenue East, east of their property was First avenue East, and east of First avenue East, Sims street; that north of their property was First and Second streets. It was shown that there was a fall from the intersection of First avenue East and Villard avenue of some .6 of a foot to the block towards the east, and that there was no point in the street that was higher than First avenue and Villard avenue; that the intersection of First avenue and First street is .9 of a foot higher than Sims street; that along First avenue there is a large ditch about 2 feet below the curb line of the sidewalk; that the water at the time of the flood came above the property line of Soules & Butlers’ about 11 inches. There is also evidence that from a short distance east of plaintiffs’ property, clear on the east side of Second avenue East, which is about to of a foot lower than plaintiffs’ property line, most of the water coming down from the north, that is, coming down First avenue East and Sims street, does not travel straight down to Villard avenue, but turns east on First street and goes over to Second avenue East and then south, so that the bulk of the water from the territory west of Soules & Butlers’ would flow along First street until it struck the street east of the lumber yard, then down and across the street and out through the culvert.

Nor can we say that the proof is by any means conclusive that the sewer was blocked by the culvert crossing, and that this was an obstruction for which the city, and .not the railway company, would be responsible. Such obstruction, indeed, might possibly have existed, but the evidence seems to show that such was not the fact. On this question the witness Hughes testified positively that he saw the culvert at 5 o’clock in the morning, and that he saw one of the plank crossings that was used to cover the culvert between the streets, about 2 feet above the culvert and 2 feet back in an indent; that at the time there was too much water to see the culvert itself; that the plank or culvert crossing that he saw was slanting up against the bank, and that the water was holding it there.

Q. You could not see whether that portion was over the mouth of the culvert ?

A. I couldn’t see how it could lay over the culvert in the position it was laying. It was laying on a slant.

Exception is taken to the instruction to the jury that “if you believe that the plaintiffs are entitled to recover as heretofore instructed, then it is your duty to determine the amount of damages sustained by reason of the flooding of these premises, and they are entitled to make matters whole. If you find in favor of the plaintiffs, then they are entitled to recover such damages as they have reasonably suffered by reason of the negligence of the defendant to provide a suitable and sufficient culvert to take care of the water that naturally, through its natural course, would drain through that territory.” It is claimed that the above quotation comprises all the instructions to the jury on the measure of damages, and that no requests for instructions on the measure of damages were in this case submitted to the trial court by either plaintiffs or defendant. “It is our contention, however,” says counsel for the defendant in his brief, “that the failure of the court to instruct the jury as to the measure of damages in this case, i. e., how they were to ascertain the damage and what they had the right to consider, is fatal. And we contend this is error regardless of whether or not such instruction was requested.” Defendant and appellant contends that “the rule in civil cases is that, where there is an established rule of law as to the measure of damages applicable to a particular case, the judge ought to inform the jury what the rule really is, and that a failure to do so is a ground for a new trial. So important is this rule that, although nondirection is in general no ground for a new trial in civil cases, unless a proper instruction is requested and refused, yet the failure to instruct the jury as to the rule of damages has been held ground for a new trial, even where the specific instruction was not asked.” “A reading of the authorities above cited,” counsel also says, “will show how logical the conclusion is. We had the right to expect that the court would give to the jury some little instruction on the measure of damages, the law of the case with reference to the damages, and did not have to take chances, because the failure to request instructions, that he would give the jury free rein, and let them do just as they pleased in determining the amount of plaintiffs’ damage, or what they would be entitled to do to 'make matters whole.’ Our complaint is that the jury should have been instructed as to how they could determine the amount of damages, if any, the plaintiffs were entitled to. And there is testimony in the record in regard to certain damage plaintiffs suffered, and there was no proof to show the amount of that damage.” " ..... • '

There appears to be no merit in this objection. Almost identically the same instruction was given in the case of Quinn v. Chicago, M. & St. P. R Co. 23 S. D. 126, 22 L.R.A.(N.S.) 789, 120 N. W. 884, where the court held that, in the absence of any requested instruction on the subject, the measui'e of damages was sufficiently defined.

The next specification of error is that the court erred in allowing a certain witness to testify as to the value of the property injured and its depreciation in value on account of such injury, it being contended that he was not properly qualified to so testify. . We think, however, that there is no merit in this objection. The witness had worked in a hardware store for at least seven and a half years; he was manager of the hardware store of the plaintiffs and had been such for some time. During such time he had done all the buying for the firm, and when new goods were received by them for sale, marked the new prices on them. He had been with the stock of goods all of the time, both before and after the flood. If such a man is not competent to testify as to the value of goods, either new or damaged, we do not know who would be. This, we must remember, is not such a case as that which was passed upon by us in Eisher v. Smith, 32 N. D. 595, 156 N. W. 242, and where the witness testified positively that he did not know the value of secondhand goods, and was hardly in a position to know such value.

The next specification of error relates to the admission in evidence of testimony in regard to the nature of a bridge which had formerly been constructed by the railway company over the swale or ravine, and which testimony, it is claimed, was not relevant or material, and did not tend to prove any issue in the case, and also to allowing evidence as to whether it would have cost any large sum to have constructed larger culverts; also whether it would have been a difficult engineering feat to do so. Counsel for defendant argues that “the above specifications, it will be noted, relate to testimony introduced by plaintiffs, both direct and on cross-examination, relating to the fact that some time ago the defendant had maintained a trestle bridge where the culvert in question now is, that the trestle bridge was 14 or 1C feet wide and always took care of the waters that came down, that it.would not cost a great deal to put a few extra culverts under the track, and they could be put in without a great deal of difficulty. We submit that the court erred grievously in letting such testimony as this go in over our objection, and that it was very prejudicial. The question at issue here is whether or not the culvert we had under the track on July 28, 1914, was adequate; and the size of a culvert kept there before, or the size of a trestle bridge kept there before, or the fact that such bridge was maintained there, or the fact that more culverts could be put in without much expense or without much trouble, was entirely immaterial and wholly collateral to the issue. And these points were touched upon and emphasized for the sole purpose of prejudicing the jury and giving plaintiffs something to argue to the jury. They went to the jury with the argument that if we had kept the trestle bridge, or put in a few more culverts at a-few dollars’ cost, these plaintiffs would not have suffered this great loss. This is an attempt to prove negligence by collateral matters, and every court in the land has said this is not permissible.”

We can see no merit in this objection. One of the immediate elements of the case was whether the swale or ravine was a natural drain way, whether it drained the area in question, the amount of water which ran therein, and the topography generally of the locality. The fact that a trestle bridge had been constructed over the ravine and was necessarily constructed had much to do with proving this fact. Houghtaling v. Chicago G. W. R. Co. 117 Iowa, 540, 91 N. W. 811; Quinn v. Chicago, M. & St. P. R. Co. 23 S. D. 126, 22 L.R.A. (N.S.) 789, 120 N. W. 884. Although this evidence might have been improperly used in the argument, we do not find that any objection was made to that argument while it was being made, or’ that any instructions were asked thereon by the defendant. If every misuse of testimony which is made upon the argument can be made a ground for reversal when no objection is made thereto upon the trial and no instruction asked thereon, but few verdicts would stand.

As far as the cost of the culverts is concerned, we do not consider this testimony at all irrelevant. It all goes to show whether or not the defendant was guilty of negligence in not providing proper preventives against heavy downpours. Surely one should not be allowed to complain when sued for the failure to provide sufficient culverts, because proof is introduced which he is at liberty to repudiate that those culverts could have been easily furnished.

Counsel for defendant and appellant also objects to the admission of testimony that the premises of the plaintiffs were flooded prior to July 28, 1914. We can see no error in the admission of this testimony. It all went to show the necessity for a sufficient culvert, and although some of it relates to a period before the particular culvert was constructed, it none the less tends to prove that fact as well as the course of the flow of the water from the drainage district.

Objection is also made to the action of the court in sustaining plaintiffs’objection as follows:

Q. Do you remember whether or not that cistern was flooded by the surface waters on that day %

Counsel for plaintiffs: I object to that on the ground that it is entirely immaterial, unless it is shown to be in this drainage basin or some way connected with it.

The Court: Objection sustained.

And the question: You may now tell us whether or not this cistern rvas flooded by surface waters on the 28th day of July, 1914.

Counsel for plaintiffs: Objected to on the ground that it is wholly immaterial, and the comparison would be of no benefit to the jury.

.This testimony was rejected by the trial court apparently on the theory that it was not competent because the reservoir in question was located in a different basin than the one in question, that is to say, located in a different hollow, although it was shown that the basins were topographically nearly the same. We are inclined to think that there is some merit in this objection. There must be some limits, however, to the proof in every case, and the evidence was merely cumulative, and all that it could possibly tend to show was the action of the water in the vicinity and the character of the storm. We can hardly reverse the judgment on this account.

Error is predicated on certain portions of the instructions in which the jury were told that “every owner of land may lawfully improve his property by doing what is reasonably necessary for that purpose, and, unless guilty of negligence in the manner of execution, will not be liable for an adjoining property. In other words, the railroad company has a right to fill a grade as it is done and established by the evidence ■in this case, provided no damage results to the adjoining property by reason of such establishing of such grade,” and: “The court instructs you as a matter of law that if the railroad company fills a grade over and across any natural drainage way, it is the duty of the railroad company to provide suitable and sufficient means for taking care of the water along such drainage way.” Also: “Now you must determine whether or not in the construction of this grade and the culvert providing for the care of surface water, whether or not the company was negligent and failed to do something that an ordinary prudent man-would not have done under the same or similar cireumstances.” And: “Gentlexnen, the plaintiffs must establish that the defendant was negligent in establishing that grade and providing an insufficient culvert to take care of the ordinary drainage water under ordinary circumstances; and, second, that the culvert was not obstructed; and, third, that it was not an extraordinary freshet, and if you find those facts then your verdict must be in favor of the plaintiff, and then determine the amount of damage suffered, if any, by reason of the flooding of these premises and the injury to their property by reason of such flooding; but if you believe that the defendant is not guilty of any negligence in the construction of his right of way and culvert in questioxx, and you believe that the damages was the result of an extraordinary freshet, then your verdict must be in favor of the defendant.”

It is also claixned that the court erx'ed in its instruction to the jury, “in that they did not cover the law of the case necessary so that the jury can intelligently decide the issues before them, and the said instructions are ambiguous and well calculated to mislead the jury.” It is also claimed that “the court em-ed in that the instructions given did not fully cover the issues in the case, the court wholly failing to instruct, •or not sufficiently instructing, on the following issues: (1) TJpon the issue as to whether or not the swale or ravine in question here was a natural water course, no definition of a natural water course having-been given them so they could determine this question intelligently. (2) TJpon the question of the measure of damages, no instruction whatsoever having been given the jury as to what constituted the measure of damages, if any, plaintiffs had suffered, having been given.”

We find xxo merit in these objections. As far as the natural water course is concerned, we are satisfied that the evidence is so conclusive that the court would have been justified in peremptorily instructing the jury that the swale or ravine was a natural water course.

As far as the other alleged errors are concerned, including’ the one in which the court says: “In other words, the railroad company has a right to fill a grade as it is done and established by the evidence in this case, provided no damage results to the adjoining property by reason of such establishing of such grade,” — we do not believe that any prejudice was occasioned. The offending words were preceded by the instruction that the court “instructs you that every owner of land may lawfully improve his property by doing what is reasonably necessary for that purpose, and unless guilty of negligence in the manner of execution will not be liable for an adjoining property,” and were followed by the words: “The court instructs you as a matter of law that, if a railway company fills a grade over and across any natural drainage way, it is the duty of the railway company to provide suitable and sufficient means for taking care of the water along such drainage way. Now, in this particular case, the gist of the action is to determine whether or not, in the construction of the right of way and establishing the culvert in question, the company, the defendant in this action, was negligent in such construction. If the company is negligent then the verdict must be for the defendant. Negligence, as that term is used in this charge, means the failure to exercise ordinary care. Negligence consists in doing something which a person of ordinary prudence and care would not do or would not have omitted to do under like or similar circumstances. Now, you must determine whether or not, in the construction of this grade and the culvert providing for the care of the surface water, whether or not the company was negligent and failed to-do something that an ordinarily prudent man would not have done under the same or similar circumstances. Now, in order to determine whether or not this defendant was negligent, it will be necessary to determine from the evidence the size of the culvert, and take into consideration the drainage area and all the circumstances surrounding" as to whether or not such culvert would, under ordinary circumstances, take care of the water of an ordinary rain storm and without injury to the adjoining landowners. If you believe from the evidence, and it is required to be established, that the proximate cause of the injury to these plaintiffs was the result of this negligence of the defendant ¿ if you believe from tbe evidence that tbe culvert was capable and sufficient to take care of the water during this storm, and that by reason of the same being interfered with by an obstacle over the mouth of the culvert that the water was prevented from escaping through the culvert,. —the defendant company is not liable for injuries resulting by the obstruction of the mouth of the culvert; and if that contributed and was the cause of the injury sustained by reason of the obstruction of the culvert, then the defendant company is' not liable for what may have resulted to the plaintiffs by reason of that fact. Now, the next question to be determined is whether or not in the storm that occurred on July 28, 1914, at which time the plaintiffs are alleged to have suffered the injuries complained of, such storm was an extraordinary freshet; if you believe from the evidence that the storm of July 28 was an extraordinary freshet, then the company is not responsible for injuries sustained, it being contemplated under the law that it was an act of God, and the defendant cannot be held responsible, and the burden is thrown on the defendant to establish this fact by a fair preponderance of the evidence, and, as before indicated, we mean by a fair preponderance of the evidence a greater weight of the evidence; that the defendant must establish that it was in fact an extraordinary freshet. In that connection the jury are instructed that the burden then, as indicated, is upon the defendant to prove by a fair preponderance of the evidence that this was an act of God and was an extraordinary freshet, and was the entire cause of the plaintiffs’ loss, which, if so, would in itself establish the absence of negligence on the part of the defendant company, and if the defendant proves by a fair preponderance of the evidence that this was an extraordinary freshet, then that shows that the defendant is free from negligence and is entitled to a verdict. Gentlemen, the plaintiffs must establish that the defendant was negligent in establishing that grade, and providing an insufficient culvert to take care of the ordinary drainage water under the ordinary circumstances; and, second, that the culvert was not obstructed; and, third, that it was' not an extraordinary freshet; and if you find those facts, then your verdict must be in favor of the plaintiffs, and then determine the amount of damage suffered, if any, by reason of the flooding of these premises and the injury to their property by reason of such flooding; but if you believe that the defendant is not guilty of-any negligence in the construction of his right of way and culvert in question, and you believe that the damages was the result of an extraordinary freshet, then your' verdict must be in favor of the defendant.”

We do not very well see how these instructions could have been very much clearer. They made it absolutely clear to the jury that the railway company could only be held liable if guilty of negligence, and that the test of that negligence was the care of an ordinarily prudent man in similar circumstances. They made it clear that the defendant could only be held liable in case the storm was not unprecedented or extraordinary. The court clearly stated that “if you believe from the evidence that the storm of July 28th was an extraordinary freshet, then the company is not responsible for the injury sustained.” In addition to this a special question was submitted to the jury on this very proposition. The instructions must be taken as a whole, and not in isolated sections, and the jury must be presumed to have been ■composed of intelligent men. Taken as a whole, the instructions were, in many respects, more favorable to the defendant than the law would warrant.

Nor can we hold, as a matter of law, with the contention of counsel for appellant, that “negligence was clearly disproved by their proof that the railroad tracks, embankments, etc., were constructed in the ordinary and usual manner, and in the most approved manner known to railroad engineers, and that the 40-inch pipe which extended under the track and constituted the culvert was sufficient to take care of the ordinary and usual rainfall in the drainage basin. In other words, that from a rainfall of 3 inches per hour, there would be a run-off of 320 cubic feet per second, and that the capacity of the culvert was HI cubic feet per second.” This testimony was, in fact, given, but the witness admitted that his computation as to the run-off from the drainage area was figured from a general formula merely; that it was based on soil in a dry condition when some of the water would be taken up by seepage, and on the presumption of ordinary street roads, and not roads which were hard and impervious to water. He specifically stated that he did not know without computing how many cubic feet ■of water would fall upon 168 acres of land if there was a rainfall of 3 inches of water per hour. This evidence would, of course, be eon-elusive if there was any proof of tbe amount of rain which actually fell during the hours in which the damage was done, and which actually fell during any similar period in the storms of the past, and that the areas from which the formula was taken were similar in topography and as to soil to that under consideration in the case at bar. It must be clear, however, that no general formula can be made to apply in such cases, as the drainage through a pipe or culvert from a drainage basin in a level district such as the Red River Yalley would be entirely different from the drainage of a hilly basin such as that to be found at Dickinson. We believe that the case was properly submitted to the jury.

The judgment of the District Court is affirmed.

Per Curiam (filed April 26th, 1916). After listening to a rearguinent in the above case, the court still adhere to the opinion above expressed.