Page:North Dakota Reports (vol. 48).pdf/198

 rainstorms which would inflict damages of a similar nature as those he had ‘sustained. We think there is no merit in such claim in this case, as the evidence shows the actual damages sustained to the merchandise and property of the plaintiff, and the time and money spent in cleaning up the basement and store after the storm, together with interest thereon and costs, approximately equals the judgment recovered.

There is no inconsistency between question 4 and the general verdict. The evidence, as a whole, as we view it, clearly shows that the embankment constructed and maintained across the channel, the natural water drainway, and the inefficiency by the iron culvert to convey, with sufficient rapidity, the water precipitated by the rainstorm here under consideration, were the proximate cause of the damages sustained by the plaintiff.

It would appear that this particular iron culvert has been the source of considerable litigation, as is evidenced from the cases above cited, and which deal with damages claimed to have arisen from that source. It would seem, so far as we are able to determine, that there was no litigation, with reference to damages resulting from overflowing or banking up of waters in this particular channel while the bridge described in the evidence was across that channel at or near where the iron culvert is now located, which bridge was in length some 45 feet on top and from 16 to 20 feet underneath, and of sufficient height so that one on horseback could ride under it.

The origin of the litigation seems to be coeval with the installing of the iron culvert. The continued maintenance of the culvert in its present condition, and in view of prior litigation, it would seem, is fast approaching the nature of a nuisance.

From an examination of the weather reports, showing the rainfall in the vicinity of Dickinson, it may be reasonably expected that a rainfall such as that of August 21, 1918, will occur most every year. Hence it is reasonable to anticipate there will be much more litigation in the future from the same source as this. This continued litigation, not only likely imposes loss on the property holders, or business men, or some of them, in the city of Dickinson—for, even though they finally succeed in being partly compensated in damages, litigation, as a rule, is both disagreeable and expensive—but as well imposes great expense on Stark county, and not the least result of all is to impose heavy losses on the railroad company,