The Act of April 4, 1874, c. 80, legislating for all the
territories, secures to their inhabitants all the rights of trial
by jury as they existed at the common law.
It is within the power of a legislature of a territory to
provide that, on a trial of a common law action, the court may, in
addition to the general verdict, require specific answers to
special interrogatories, and when a conflict is found between the
two, render such judgment as the answers to the special questions
compel.
The doctrine of the civil law and that of the common law
touching the respective rights and duties of proprietors of upper
and lower land as to the flow of surface water are conflicting, and
it is the duty of this Court
Page 165 U. S. 594
in cases involving such rights and duties to follow the
decisions of the local state courts, although it may involve
apparently contradictory decisions.
A territorial legislature has all the legislative power of a
state legislature except as limited by the Constitution, and by act
of Congress; and, the Legislature of New Mexico, having adopted the
common law as the rule of practice and decision, this Court is
bound by it.
On November 3, 1886, A. C. Walker commenced this action in the
District Court of the Second Judicial District of the Territory of
New Mexico in and for the County of Socorro, against the railroad
company defendant, to recover damages resulting from an overflow of
his lands caused, as charged, by a wrongful obstruction of a
natural watercourse. Subsequently, an amended declaration was
filed, and after the death of A. C. Walker, the action was revived
in the name of his administratrix, the present plaintiff in error.
After some preliminary proceedings, a trial was had in December,
1892, on which trial the jury returned a general verdict, finding
the defendant guilty, and assessing the plaintiff's damages at
$9212.50. At the same time, the jury returned, in response to
certain questions submitted by the court, special findings of fact.
The trial court, overruling all other motions, entered a judgment
in favor of the defendant on the ground that the special findings
of fact were inconsistent with and controlled the general verdict,
and that, upon such findings of fact, the defendant was entitled to
judgment. The case was thereafter taken to the supreme court of the
territory, by which court, on August 26, 1893, the judgment was
affirmed, 34 P. 43, and thereupon the plaintiff sued out this writ
of error.
MR. JUSTICE BREWER, after stating the facts in the foregoing
language, delivered the opinion of the Court.
The testimony was not preserved, and the case is submitted to us
upon the pleadings, the verdict, the special findings of
Page 165 U. S. 595
fact, and the judgment, and on the record as thus presented
plaintiff in error rests her claim of reversal upon three
propositions:
First. That the act of the territorial legislature authorizing
special findings of fact and providing for judgment on the special
findings, if inconsistent with the general verdict (Laws of New
Mex. 1889, c. 45, p. 87), is in contravention of the Seventh
Amendment to the Constitution of the United States, which
reads:
"In suits at common law, where the value in controversy shall
exceed twenty dollars, the right of trial by jury shall be
preserved, and no fact tried by a jury shall be otherwise
reexamined in any court of the United States, than according to the
rules of the common law."
Second. That there is no such conflict between the general
verdict and the special findings as authorized a judgment contrary
to the general verdict. And third, that if there be any conflict
between the special findings and the general verdict, the special
findings are so inconsistent with each other as to neutralize and
destroy themselves.
First, with regard to the constitutional question, the specific
objection is thus stated in the brief:
"It is not contended, although the English authorities would
appear to warrant the contention, that at the common law the judge
might not require the jury to answer special questions, or
interrogate the jury as to the grounds upon which their general
verdict was found; but it is most earnestly contended that the
extent of the power of the judge, if in his opinion the special
findings or answers of the jury to interrogatories were
inconsistent with the general verdict, was to set aside the general
verdict, and award a venire
de novo, while under this
statute authority is attempted to be conferred upon the judge to
render final judgment upon the special findings."
We deem it unnecessary to consider the contention of defendant
in error that the territorial courts are not courts of the United
States, and that the Seventh Amendment is not operative in the
territories, for by the Act of April 7, 1874, c. 80, 18 Stat. 27,
Congress, legislating for all the territories, declared that no
party "shall be deprived of the right of trial
Page 165 U. S. 596
by jury in cases cognizable at common law;" and while this may
not, in terms, extend all the provisions of the Seventh Amendment
to the territories, it does secure all the rights of trial by jury
as they existed at common law.
The question is whether this act of the territorial legislature
in substance impairs the right of trial by jury. The Seventh
Amendment, indeed, does not attempt to regulate matters of pleading
or practice, or to determine in what way issues shall be framed by
which questions of fact are to be submitted to a jury. Its aim is
not to preserve mere matters of form and procedure, but substance
of right. This requires that questions of fact in common law
actions shall be settled by a jury, and that the court shall not
assume, directly or indirectly, to take from the jury or to itself
such prerogative. So long as this substance of right is preserved,
the procedure by which this result shall be reached is wholly
within the discretion of the legislature, and the courts may not
set aside any legislative provision in this respect because the
form of action -- the mere manner in which questions are submitted
-- is different from that which obtained at the common law.
Now a general verdict embodies both the law and the facts. The
jury, taking the law as given by the court, apply that law to the
facts as they find them to be, and express their conclusions in the
verdict. The power of the court to grant a new trial if, in its
judgment, the jury have misinterpreted the instructions as to the
rules of law or misapplied them is unquestioned, as also when it
appears that there was no real evidence in support of any essential
fact. These things obtained at the common law. They do not trespass
upon the prerogative of the jury to determine all questions of
fact, and no one today doubts that such is the legitimate duty and
function of the court, notwithstanding the terms of the
constitutional guaranty of right of trial by jury. Beyond this, it
was not infrequent to ask from the jury a special, rather than a
general, verdict -- that is, instead of a verdict for or against
the plaintiff or defendant, embodying in a single declaration the
whole conclusion of the trial, one which found specially upon the
various facts in issue, leaving to the court
Page 165 U. S. 597
the subsequent duty of determining upon such facts the relief
which the law awarded to the respective parties.
It was also a common practice, when no special verdict was
demanded and when only a general verdict was returned, to
interrogate the jury upon special matters of fact. Whether or no a
jury was compelled to answer such interrogations, or whether, if it
refused or failed to answer, the general verdict would stand or
not, may be questioned.
Mayor, etc. v. Clark, 3 Ad. &
Ell. 506. But the right to propound such interrogatories was
undoubted, and often recognized.
Walker v. Bailey, 65 Me.
354;
Spurr v. Shelburne, 131 Mass. 429. In the latter
case, the court said (page 430):
"It is within the discretion of the presiding justice to put
inquiries to the jury as to the grounds upon which they found their
verdict, and the answers of the foreman, assented to by his
fellows, may be made a part of the record, and will have the effect
of special findings of the facts stated by him. And no exception
lies to the exercise of this discretion.
Dorr v. Fenno, 12
Pick. 521;
Spoor v. Spooner, 12 Met. 281;
Mair v.
Bassett, 117 Mass. 356;
Lawler v. Earle, 5 Allen,
22."
So that the putting of special interrogatories to a jury, and
asking for specific responses thereto in addition to a general
verdict is not a thing unknown to the common law, and has been
recognized independently of any statute. Beyond this, we cannot
shut out eyes to the fact that in many states in the Union in whose
constitutions is found in the most emphatic language an assertion
of the inviolability of trial by jury are statutes similar to the
one enacted by the territorial legislature of New Mexico, that
those statutes have been uniformly recognized as valid, and that a
large amount of the litigation in the courts is carried through in
obedience to the provisions of such statutes. It would certainly
startle the profession to be told that such statutes contravene a
constitutional requirement of the inviolability of jury trials.
Indeed the very argument of counsel for plaintiff in error is an
admission that, up to a certain extent, those statutes are
undoubtedly valid. That argument is practically that when the
specific findings are returned and found to be conflicting
Page 165 U. S. 598
with the general verdict, the court is authorized to grant a new
trial, but can do no more. But why should the power of the court be
thus limited? If the facts, as specially found, compel a judgment
in one way, why should not the court be permitted to apply the law
to the facts as thus found? It certainly does so when a special
verdict is returned. When a general verdict is returned and the
court determines that the jury have either misinterpreted or
misapplied the law, the only remedy is the award of a new trial,
because the constitutional provision forbids it to find the facts.
But when the facts are found and it is obvious from the
inconsistency between the facts as found and the general verdict
that in the latter, the jury have misinterpreted or misapplied the
law, what constitutional mandate requires that all should be set
aside, and a new inquiry made of another jury? Of what significance
is a question as to a specific fact? Of what avail are special
interrogatories and special findings thereon if all that is to
result therefrom is a new trial, which the court might grant if it
were of opinion that the general verdict contained a wrong
interpretation or application of the rules of law? Indeed, the very
thought and value of special interrogatories is to avoid the
necessity of setting aside a verdict and a new trial -- to end the
controversy, so far as the trial court is concerned, upon that
single response from the jury.
We are clearly of opinion that this territorial statute does not
infringe any constitutional provision, and that it is within the
power of the legislature of a territory to provide that, on a trial
of a common law action the court may, in addition to the general
verdict, require specific answers to special interrogatories, and
when a conflict is found between the two, render such judgment as
the answers to the special questions compel.
For a full understanding of the second question, it is necessary
to notice the pleadings. The original declaration, after stating
that the Rio Grande River runs in its regular channel about half a
mile east of the plaintiff's premises and that the waters from
rainfalls pass and flow in their natural
Page 165 U. S. 599
fall from the surrounding and adjacent country over the
plaintiff's and other lands in the vicinity and empty into the
river, and that by that means the surface water, up to the time of
the grievances complained of, had been carried off without injury
to the plaintiff, or his property, charged that on May 1, 1885, the
defendant, in and by the construction of its roadbed, did dam and
close up all of the natural and usual outlets and places through
which the surface water had been accustomed to make its escape,
thereby causing such surface water theretofore flowing to the river
as aforesaid to be dammed up and set back upon the premises of the
plaintiff and other property owners; that on September 7, 1886,
there was a heavy rainfall, and the surface water, unable, by
reason of the obstruction, to reach the river, was set back on the
premises of the plaintiff, making a lake or pond of waters three to
four feet in depth, and doing great injury to his property. A
demurrer to this declaration having been sustained, an amended
declaration was filed which, omitting all reference to rainfalls
and surface water, charged that the defendant obstructed the
natural and artificial watercourses by which the waters from the
north and west of the plaintiff's property, and from the Socorro
and Magdalena Mountains, in their natural flow and fall, passed
over the lands of the plaintiff and other lands, and emptied into
the Rio Grande. A demurrer to this declaration having been
overruled, the plaintiff was directed to file a bill of particulars
showing the places and courses of the alleged natural and
artificial watercourses, and did so, describing three or four beds
or channels through which, in a natural fall, as he averred, the
waters passed from the Socorro and Magdalena Mountains into the Rio
Grande.
Now the contention of the defendant in error is that it is
apparent from the answers given to the special questions that there
were no natural watercourses obstructed by defendant's roadbed and
that the water which did the damage was simply surface water. The
second, third, fourth, and fifth are as follows:
"Q. 2. Was there a cloudburst in the Magdalena or Socorro
Page 165 U. S. 600
Mountains on September 8, 1886; and, if so, was the water
therefrom the water which ran over plaintiff's land?"
"A. Yes."
"Q. 3. Was the water which came down the arroyos from the
Magdalena and Socorro Mountains on September 8, 1886, surface
water?"
"A. Yes."
"Q. 4. Was it customary for water to collect and stand on
plaintiff's land, and land in the immediate vicinity thereof, in
the times of heavy rains or floods?"
"A. No."
"Q. 5. How often, upon an average in any one year, did the water
come down the arroyos leading toward the valley in the vicinity of
Socorro from the Magdalena and Socorro Mountains prior to September
8, 1886?"
"A. According to the rain which fell."
This is very clear. There was a cloudburst in the mountains, and
it was the water from that which did the damage. It was simply
surface water. And the arroyos through which the water flowed after
leaving the mountains were not running streams -- natural
watercourses -- but simply passageways for the rain which fell.
Counsel for plaintiff in error, not questioning that the injury
done to the property of their client was by surface water -- the
large fall which came from the cloudburst in the Socorro or
Magdalena Mountains on September 8, 1886 -- insist that it does not
appear that such cloudbursts were unusual, and also that there had
been created through the lapse of years distinctive channels by
which the waters from the mountains passed down to the river, and
that the railroad embankment operated to obstruct such channels;
that although these channels were not the beds of constantly
flowing streams, they were wrought by natural processes, and
through the flowing of water, not continuous, but at frequent
intervals, until they had become natural outlets for the
often-accumulating waters in the Socorro and Magdalena Mountains.
In view of this contention, it is well to consider other findings
so far as they disclose the character of these waterways. The
sixth, eighth, ninth, fourteenth, fifteenth, twenty-second,
twenty-third, and twenty-fifth questions and answers may be
referred to:
"Q. 6. How far is the mouth of the main arroyo which
Page 165 U. S. 601
runs through the western part of the City of Socorro in a
northerly direction from the main line of the railroad?"
"A. Three-quarters of a mile, more or less."
"Q. 8. Does the railroad of the defendant cross any arroyo
leading from the Magdalena or Socorro Mountains ar any place north
of the Magdalena branch of the New Mexican Railroad Company at its
junction with the main line one and one-half miles?"
"A. Yes."
"Q. 9. If you state in answer to the last question that there
was such an arroyo, state where it is, its length, breadth, and the
height of its banks."
"A. West of the City of Socorro and east of the Catholic
graveyard. Its banks are about two feet, its width about sixty
feet, and about a mile in length, more or less."
"Q. 14. How far from the main line of the railroad, in a
westerly direction, are the mouths of the arroyos testified to by
the witnesses?"
"A. Three-quarters mile to main arroyo, and one-quarter of a
mile to lower arroyo."
"Q. 15. What is the character of the land lying between the
mouths of the arroyos and the main line of the railroad? Is it
level or sloping, and for what purposes was it used in 1886?"
"A. It is level now, and in 1886 it was an arroyo, and there is
no ditch now excepting the company drain."
"Q. 22. How far is it from the mouths of the arroyos testified
to by the witnesses to the Magdalena and Socorro Mountains?"
"A. To the Socorro Mountains four miles, and to the Magdalena
Mountains eighteen miles."
"Q. 23. How far is it from plaintiff's property to the Socorro
or Magdalena Mountains?"
"A. More or less, the same distance as in the foregoing
answer."
"Q. 25. Which was constructed first, the railroad company
embankment or the houses of plaintiff which were damaged by the
water?"
"A. Railroad."
It is obvious not only that it was mere surface water whose flow
was obstructed, not only that no natural water courses were filled
up, but also that the channels which were obstructed were not such
ravines, gorges, and outlets as in a mountainous district must be
left open to prevent the forming
Page 165 U. S. 602
of lakes and reservoirs therein, but simply the ordinary ditches
and passageways which surface water will cut in a generally level
district in its effort to reach some flowing stream. It also
appears from the answer to the twenty-fifth question that the
railroad embankment was constructed before the buildings of the
plaintiff. It will be borne in mind that the mountains from which
this surface water flowed were from 4 to 18 miles distant, and from
the foot of those mountains to the Rio Grande River, naturally, the
flowing water had dug channels and ditches through such portions of
the soil as afforded the least obstruction to its passage, and such
channels and ditches were all that the railroad embankment in any
way obstructed.
Does a lower landowner, by erecting embankments or otherwise
preventing the flow of surface water onto his premises, render
himself liable to an upper landowner for damages caused by the
stopping of such flow? In this respect, the civil and common law
are different, and the rules of the two laws have been recognized
in different states of the Union, some accepting the doctrine of
the civil law that the lower premises are subservient to the higher
and that the latter have a qualified easement in respect to the
former -- an easement which gives the right to discharge all
surface water upon them. The doctrine of the common law, on the
other hand, is the reverse -- that the lower landowner owes no duty
to the upper landowner; that each may appropriate all the surface
water that falls upon his own premises, and that the one is under
no obligation to receive from the other the flow of any surface
water, but may, in the ordinary prosecution of his business and in
the improvement of his premises, by embankments or otherwise,
prevent any portion of the surface water coming from such upper
premises. In
Atchison, Topeka & Santa Fe Railroad v.
Hammer, 22 Kan. 763, it was held that
"the simple fact that the owner of one tract of land raises an
embankment upon it which prevents the surface water falling and
running upon the land of an adjoining owner from running off said
land, and causes it to accumulate thereon to its damage, gives to
the latter no cause of
Page 165 U. S. 603
action against the former; nor is the rule changed by the fact
that the former is a railroad corporation, and its embankment
raised for the purpose of a railroad track, nor by the fact that a
culvert could have been made under said embankment sufficient to
have afforded an outlet for all such surface water."
In
Gibbs v. Williams, 25 Kan. 214, 216, it was
said:
"Now the ordinary rule concerning surface water is settled and
familiar. The lower estate owes no duty to the higher, and the
owner of each may use or abandon surface water as he pleases."
In
Kansas City & Emporia Railroad v. Riley, 33 Kan.
374, 376-377, it was said:
"The common law, as modified by constitutional and statutory
law, judicial decisions, and the condition and wants of the people,
is in force in this state in aid of the general statutes. Therefore
the doctrine of the common law with respect to the obstruction and
flow of mere surface water prevails as a general rule. Under this
rule, surface water is within the control of the owner of any land
upon which it falls or over which it flows. He may use all that
comes upon his own, or decline to receive any that falls on his
neighbor's land. . . . The doctrine of the common law with respect
to the obstruction and flow of mere surface water is not only in
force in England, but in Connecticut, Indiana, Massachusetts,
Missouri, New Jersey, New Hampshire, New York, Vermont, and
Wisconsin. . . . The rule of the civil law seems to be in force in
Pennsylvania, Iowa, Illinois, California, Louisiana, and is
referred to with approval in Ohio."
In
Hoyt v. Hudson, 27 Wis. 656, 659, the difference
between the civil and the common law was thus stated in a carefully
prepared opinion by Chief Justice Dixon:
"The doctrine of the civil law is that the owner of the upper or
dominant estate has a natural easement or servitude in the lower or
servient one, to discharge all waters falling or accumulating upon
his land, which is higher, upon or over the land of the servient
owner, as in a state of nature, and that such natural flow or
passage of the water cannot be interrupted
Page 165 U. S. 604
or prevented by the servient owner to the detriment or injury of
the estate of the dominant or any other proprietor. . . . The
doctrine of the common law is that there exists no such natural
easement or servitude in favor of the owner of the superior or
higher ground or fields as to mere surface water, or such as falls
or accumulates by rain or the melting of snow, and that the
proprietor of the inferior or lower tenement or estate may, if he
choose, lawfully obstruct or hinder the natural flow of such water
thereon, and in so doing may turn the same back upon or off, onto,
or over the lands of other proprietors without liability for
injuries ensuing from such obstruction or diversions."
It would be useless to cite the many authorities from the
different states in which, on the one side or the other, these
doctrines of the civil and the common law are affirmed. The
divergency between the two lines of authorities is marked,
springing from the difference in the foundation principle upon
which the two doctrines rest -- the one affirming the absolute
control by the owner of his property, the other affirming a
servitude, by reason of location, of the one premises to the other.
Washburn, in his treatise on Easements and Servitudes (3d ed., side
page 353 and following), treats at length on these two lines of
authorities. So also, in Angell on Watercourses (7th ed., § 108 and
following), is the matter discussed.
If a case came to this Court from one of the states in which the
doctrine of the civil law obtains, it would become our duty, having
respect to this which is a matter of local law, to follow the
decisions of that state. And in like manner we should follow the
adverse ruling in a case coming from one of the states in which the
common law rule is recognized. New Mexico is a territory, but in it
the legislature has all legislative power except as limited by the
Constitution of the United States and the organic act and the laws
of Congress appertaining thereto. There, it was enacted in 1876,
Laws of New Mex. 1876, p. 31, c. 2, § 2, that "in all the courts in
this territory, the common law as recognized in the United States
of America shall be the rule of practice and decision."
Browning v. Browning, 9 P. 677, 682. The Legislature
of
Page 165 U. S. 605
New Mexico having thus adopted the common law as the rule of
practice and decision, and there being no special statutory
provisions in respect to this matter, it is not to be wondered at
that the supreme court of the territory, in its opinion in the
present case, disposed of this question in this single
sentence:
"If the act of the territorial legislature of 1889 is
constitutional, then we can find no error in the action of the
court in setting aside the general verdict, and entering judgment
upon the special findings."
Obviously the only question deemed of any moment by that court
was the question in respect to the matter of special findings.
It may be proper to notice that the exception suggested by Chief
Justice Beansley in
Bowlsby v. Speer, 31 N.J.L. 351, 353,
in these words:
"How far it may be necessary to modify this general proposition
in cases in which, in a hilly region, from the natural formation of
the surface of the ground, large quantities of water, in times of
excessive rains or from the melting of heavy snows, are forced to
seek a channel through gorges or narrow valleys will probably
require consideration when the facts of the case shall present the
question,"
and noticed afterwards in
Hoyt v. Hudson, supra, and
Palmer v. Waddell, 22 Kan. 352, has no application to the
case before us, for, as appears from the findings, the mountainous
district from which these waters flowed was from four to eighteen
miles distant from the place of the embankment and the damage. We
must therefore overrule the second contention made by counsel for
plaintiff in error.
The third requires little notice. It does not seem as though
there were any particular inconsistency between the various special
findings. The only one that deserves any notice is that which is
suggested by the first question and the answer thereto, as
follows:
"Q. 1. At the time of the injury complained of, did any of the
water flow or run over the plaintiff's land, except the water which
fell from the clouds as rain?"
"A. It did run."
It is a little difficult to understand exactly what is meant by
this. It may be that the jury meant that the water came from the
cloudburst, as distinguished from an ordinary rainfall,
Page 165 U. S. 606
or it may be that their purpose was simply to affirm that this
water coming down the arroyos did run over the land of the
plaintiff. Considering the uncertainty as to the import of this
question and answer, and in view of the clear and positive answers
to other direct questions, and also in view of the averments in the
original declaration, we think it would be going too far to hold
that this is to be taken as a finding that there was a natural
watercourse whose waters, increased by the rainfall and cloudburst,
overflowed their banks and injured the plaintiff's property. These
are all the questions in the case, and, finding no error in the
record, the judgment is
Affirmed.