Louisville & N.R. Co. v. Capdepon

• Decision Date: 24 November 1941
• Docket Number: 34717.
• Citation: 4 So.2d 544,192 Miss. 28
• Court: Mississippi Supreme Court
• Parties: LOUISVILLE & N. R. CO. v. CAPDEPON.

4 So.2d 544

192 Miss. 28

LOUISVILLE & N. R. CO. v. CAPDEPON.

No. 34717.

Supreme Court of Mississippi

November 24, 1941

Smith Hand & Arendall, of Mobile, Ala., for appellant.

Gex & Gex, of Bay St. Louis, for appellee.

ROBERDS Justice.

In 1923 appellee purchased a house and lot in the municipality of Bay St. Louis, Mississippi, on which he and his family thereafter resided.

Many years prior thereto appellant acquired a right of way adjacent to that lot, on which right of way it constructed a railroad, and along the side thereof next to the property of appellee it dug a ditch, which ran parallel with its right of way and railroad tracks.

Appellee sued appellant for damages to his lot and improvements thereon, and also for inconvenience, danger to health of himself and family, etc., resulting, as appellee claimed from the wrongful interference by appellant of the natural flow of surface waters from his lot by the construction of such railroad, aggravated by the negligence of appellant in permitting said ditch to become clogged and stopped up by grass, tree tops, and other debris in the years 1937 to 1940 so that it would not carry the surface waters from appellant's lot as it had theretofore done, and for which the ditch was constructed, thereby casting such surface waters back onto the lot of appellee, causing the foregoing damage.

All elements of damage were eliminated by the lower court from consideration of the jury except that to the real property. There was a verdict and judgment for three hundred dollars for appellee, plaintiff below, from which this appeal is taken.

All questions presented on the appeal resolve themselves into the one question-whether the evidence was sufficient to support the finding of the jury that the railroad did, by the construction of its railroad, obstruct the natural flow of surface waters from the lot of appellee. If it did not, in fact, so interfere, then the railroad was under no duty to construct a ditch to carry off the surface waters from the property of appellee. If it did in fact so interfere, then all parties admit that the circumstances were such as to impose the duty on the railroad to construct the ditch and care for such surface waters, within the rules pertaining to surface water rights which this Court has laid down in Sinai v. Louisville, etc., R. Co., 71 Miss. 547, 14 So. 87; Illinois C. R. Co. v. Miller, 68 Miss. 760, 10 So. 61; Holman v. Richardson, 115 Miss. 169, 76 So. 136, L.R.A.1917 F, 942; Yazoo & M. V. R. Co. v. Davis, 73 Miss. 678, 19 So. 487, 32 L.R.A. 262, 55 Am.St.Rep. 562; Mobile & O. R. Co. v. Tays, 142 Miss. 743, 107 So. 871; Columbus & Greenville R. Co. v. Taylor, 149 Miss. 269, 115 So. 200.

See, also, the case of Yazoo & M. V. R. Co. v. Scott, 110 Miss. 443, 70 So. 459, in which the Court said that under circumstances which bring the case within the modified rule in Mississippi, it is not only the duty of the railroad company to properly construct, but also to properly maintain its roadbed, so as not to obstruct the natural flow of surface waters from property of others.

When plaintiff rested his case he had failed to introduce sufficient evidence to support the finding of the jury on that question, and the motion of defendant, then made, to exclude such evidence and for a directed verdict for the defendant, should have been, but was not, sustained. But we think that the evidence afterwards introduced by the defendant, taken with that which the plaintiff had offered, was sufficient to support such verdict.

Plaintiff and his witnesses had testified, in substance, that the natural slope of the land was from his lot toward the railroad and that the water naturally flowed in that direction-at least, a large part of it; that this was in the direction of the Gulf; that when this ditch was kept open it would drain the waters from his lot; as some expressed it "it stayed dry;" that the railroad servants cleared underbrush and trimmed trees along the railroad property, and threw these into the...