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without fault: Walters v. Western etc. Ry. Co., 56 Fed. Rep. 369. It was the duty of the railway company, the carrier, before delivering this grain to any person at any place, to take up the outstanding bills of lading which it had issued for it. So long as the bills of lading were outstanding, they were representations by the railway company to the commercial world that it had in its possession and under its control and in transit to Milwaukee and St. Louis the grain for which the bills of lading called.

67 There is no error in the record, and the judgment of the district court is affirmed.

BILLS OF LADING-INDORSEMENT-EFFECT.-A bill of lading, regularly, fairly, and for value indorsed to another, will pass the title in the goods to the indorsee: Decan v. Shipper, 35 Pa. St. 289; 78 Am. Dec. 334; Rowley v. Bigelow, 12 Pick. 307; 23 Am. Dec. 607; Winslow v. Norton, 29 Me. 419; 50 Am. Dec. 601; Missouri Pac. Ry. Co. v. Heidenheimer, 82 Tex. 195; 27 Am. St. Rep. 861, and note. See, also, the extended notes to Chandler v. Sprague, 38 Am. Dec. 419, and Bank v. Jones, 55 Am. Dec. 299.

EQUITY. IF A LOSS MUST BE BORNE BY ONE OF TWO INNOCENT PARTIES, it must be borne by him who occasioned it: City Nat. Bank v. Kusworth, 88 Wis. 188; 43 Am. St. Rep. 880, and note; Wittenbrock v. Parker, 102 Cal. 93; 41 Am. St. Rep. 172, and note.

BEATRICE V. LEARY.

[45 NEBRASKA, 149.]

JURY TRIAL.-DAMAGES AWARDED LESS IN AMOUNT than the damages testified to, raise no presumption that the jury was influenced by passion or prejudice in making the award.

WATERS-SURFACE.-The rule that surface water is a common enemy, and that an owner may defend his premises against it by dike or embankment, without liability to an adjoining owner, is subject to the rule that every proprietor must so use his own property as not to unnecessarily and negligently injure his neighbor.

WATERS-SURFACE.-Every proprietor may lawfully improve his property by doing what is reasonably necessary for that purpose, and, unless guilty of some act of negligence in the manner of its execution, is not answerable to an adjoining proprietor, although he may thereby cause surface water to flow on the premises of the latter to his damage; but if, in the execution of such enterprise, he is guilty of negligence which is the natural and proximate cause of injury to his neighbor, he is accountable therefor.

WATERS-SURFACE.-A city has the right to take such steps, and perform such acts, as, in its judgment, are necessary to protect its streets from surface water; but it must perform such work with ordinary care, and, if guilty of negligence which is the natural and proximate cause of injury to an adjoining lotowner, it is liable therefor.

WATERS-SURFACE.—A CITY, in protecting its streets from surface water, must exercise ordinary care to prevent obstructing a ditch which will result in injury to lotowners by overflow of such water.

WATERS-SURFACE ESTOPPEL.-Petitioning a city to grade and pave a street does not estop a property owner from claiming damages for the negligent omission of the city to provide suitable outlets for surface water.

MUNICIPAL CORPORATIONS-DRAINAGE.-Negligence may be imputed to a city, and it may be held liable for damages resulting therefrom, if its officers, acting in good faith, adopt an insufficient or defective plan of drainage.

WATERS, SURFACE. THE ACTS OF A CITY in cutting ditches along streets and in building dikes, are ministerial acts, for which it may be held liable, in case of negligent omission to provide sufficient outlets for surface water.

WATERS, SURFACE-QUESTION FOR JURY.-The sufficiency of the capacity of ditches dug by a city to carry off surface water, and negligence in their construction, are questions of fact for the jury.

E. O. Kretsinger, for the plaintiff in error.

G. A. Murphy, for the defendant in error.

152 RAGAN, C. The Big Blue river runs south through the city of Beatrice, crossing Court street at right angles. The property of Mrs. Ellen Leary, consisting of some city lots and a dwelling-house thereon, is situate on the north side of Court street, and some distance west of where said street crosses said river. Cedar street opens into Court street immediately south of Mrs. Leary's property. One block south of Court street, and parallel thereto, is Mary street, and one block south of Mary street, and parallel thereto, is Scott street. The country to the south and west of Mrs. Leary's property inclines to the north and east to the river. In the summer of 1891, and prior thereto, a draw or swale, heading in the foothills of said river, some miles southwest of where the river intersects Court street, meandered from the hills in a northeasterly direction, and entered Cedar street south of Scott street, thence along Cedar street into Court street immediately south of the Leary property, and there opened into a ditch or gully extending down Court street to the Blue river. It seems from the record that the ditch was an artificial channel that had been made to take the place of the draw which had once extended down Court street to the river. In the summer and autumn of 1891, the city of Beatrice graded and paved Court street west of the river to a point west of the Leary property, and, in doing so, filled up the ditch in Court street through which the waters from the draw or swale above mentioned had been accustomed to find their way to the river. The draw was not a running stream, as that term is commonly understood, although it would seem from the evidence that there was some water in some portions of it during most of the year.

The draw was, in fact, a natural conduit through which the surface waters, resulting from rains and melting 153 snows on a large area of country, found their way to the Blue river. Mrs. Leary brought this suit in the district court of Gage county, against the city of Beatrice. She alleged that, in the spring of 1892, the waters came down in this swale or draw from the southwest along Cedar street to Court street, and, being unable to escape to the river, overflowed said street, and flowed on and damaged her property. The ground of negligence alleged by her against the city, and made the basis of her action, was that the city, in grading and paving Court street, filled up said ditch, and failed to provide any outlet for the waters which were accustomed, in times of rains or freshets, to flow down in said swale or draw, and thence escape by said ditch into the river. The city, in addition to a general traverse of the material alle gations of the petition as to its negligence, pleaded, as a defense to the action, that the grading and paving of Court street were done upon the petition and request of the abutting property owners of said street-Mrs. Leary being among the number of said petitioners; and that, by reason of her petitioning the city to grade and pave said street in the manner it did, she was estopped from claiming damages against the city resulting from said paving and grading. A further defense was, that the damages sued for were the result of an unprecedented and violent rainstorm and flood of such a character as to be, in contemplation of law, the act of God. Mrs. Leary had a verdict and judgment, to reverse which the city has prosecuted to this court a petition of

error.

1. The first contention of the city is, that the damages awarded Mrs. Leary are excessive, and appear to have been given under the influence of passion or prejudice. This contention cannot be sustained. The damages awarded are less than the damages testified to, and, therefore, the amount of the damages raises no presumption that the jury was influenced by passion or prejudice in making the award.

154 2. The second contention is, that the verdict is not sustained by sufficient evidence. Two arguments are made in support of this assignment: 1. That the city, prior to its paving and grading Court street, adopted a plan or scheme for the draining of the waters which were accustomed to come down said draw and ditch into the river; and, to carry out this plan, the city constructed dams or dikes across the draw at Scott and Mary streets, and dug ditches along the sides of said streets from the

draw to the river. The sufficiency of these dikes and ditches to accomplish the purposes for which they were constructed was passed upon by the jury, and we cannot say that they came to an incorrect conclusion; 2. The principal argument, however, under this head is, that the finding of the jury, that the damages sustained by Mrs. Leary were not the result of the act of God, is wrong. The evidence on this subject was conflicting, and some of it as extraordinary as the freshet or rainstorm was alleged to be. A large number of witnesses testified, on behalf of Mrs. Leary, that they had lived in the vicinity of Beatrice for a number of years, and that the freshet, or rain, which injured her property, while it was a great rain, was no greater than other rains they had known there, or, in substance, that the rain was not an unprecedented flood, a cloudburst, or waterspout. On the other hand, witness after witness, in behalf of the city, testified it was the most violent flood they had ever known. The testimony of two of these witnesses and their names deserve a place in the piscatorial history of the state. One Frank Thompson testified that, just prior to the rain, he had crossed the draw in question on a pony, and immediately after crossing the draw, it began to rain, and before he could recross the draw, the water had risen in it so high that the pony was compelled to swim and the flood carried the pony and his rider over a wire fence; that after he had succeeded in crossing the draw, he went down to the city-presumably on his pony-and that the flood carried him over more wire fences; that the draw where he was when the rain began was twelve feet deep and forty feet wide, and that it was filled up with water to the top of its banks in one second. The other witness, Schultz, had a barn near Scott street and the draw. He testified that the water rose in the draw up to the top of the roof of the barn, and did so in five or six minutes. The record does not disclose whether or not the barn was washed away. It is asking too much of this court to disturb the verdict of a jury, based on evidence like the above. We are not fitted Only a jury of the

155

by our profession or training for such a task. vicinage could find the straight and narrow way of truth and dry land in such storms and flood and Cimmerian darkness as this. The district court told the jury that if they believed from the evidence that the damage done to Mrs. Leary's property was the result of excessive, extraordinary, and unusual cloudbursts, rainstorms, and floods, these would constitute, under the law, an act of God, for which the city was not liable, unless they found from the evidence that the negligence of the city contributed in

a "large degree, along with the act of God," to the damage of the plaintiff. This instruction was correct: Republican etc. R. R. Co. v. Fink, 18 Neb. 89. The evidence shows that Mrs. Leary's property was damaged by the freshet in the spring of 1892; that she sustained damages equal to the amount awarded by the jury; that her property was damaged by the waters that came down this draw to Court street, and, by reason of the draw being there obstructed and the ditch in the street having been filled, were unable to escape to the river, and overflowed on her property; that this overflow was brought about by the act of the city in damming the draw and filling the ditch in Court street and failing to provide sufficient outlets or ditches down Mary and Scott streets, or elsewhere, to vent these waters. We therefore reach the conclusion that the finding of the jury, that the negligence of the city was the proximate cause of the injury 156 sustained by Mrs. Leary, has sufficient evidence in the record for its support.

3. Another assignment is, that the verdict is contrary to law. Three arguments are made to support this assignment.

It is first insisted that the city had the lawful right to pave and grade Court street, and that, in doing so, it had a right to defend itself and its property against surface water, the common enemy, by filling the ditch in said street, and diking or damming the draw that emptied into said ditch; and that it is not responsible for any damages that Mrs. Leary may have sustained resulting from its actions in that respect. The doctrine of this court is the rule of the common law, that surface water is a common enemy, and that an owner may defend his premises against it by dike or embankment, and, if damages result to adjoining proprietors by reason of such defense, he is not liable therefor; but this rule is a general one, and subject to another commonlaw rule, that a proprietor must so use his own property as not to unnecessarily and negligently injure his neighbor; and, therefore, every proprietor may lawfully improve his property by doing what is reasonably necessary for that purpose, and, unless guilty of some act of negligence in the manner of its execution, will not be answerable to an adjoining proprietor, although he may thereby cause the surface water to flow on the premises of the latter to his damage; but if, in the execution of such enterprise, he is guilty of negligence, which is the natural and proximate cause of injury to his neighbor, he is accountable therefor: Lincoln etc. R. R. Co. v. Sutherland, 44 Neb. 526, and cases there cited. The city had the right to grade and pave Court street

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