Alabama & Mississippi Railroad Co. v. Beard

• Decision Date: 15 February 1909
• Docket Number: 13,4111/2
• Citation: 48 So. 405,93 Miss. 294
• Parties: ALABAMA & MISSISSIPPI RAILROAD COMPANY v. WILLIAM P. BEARD
• Court: Mississippi Supreme Court

48 So. 405

93 Miss. 294

ALABAMA & MISSISSIPPI RAILROAD COMPANY v. WILLIAM P. BEARD

No. 13,4111/2

Supreme Court of Mississippi

February 15, 1909

FROM the circuit court of Greene county, HON. WILLIAM H. HARDY Judge.

Beard appellee, was plaintiff in the court below; the railroad company, appellant, was defendant there. From a judgment in plaintiff's favor the defendant appealed to the supreme court. The facts are fully stated in the opinion of the court.

Reversed and remanded.

McWillie & Thompson, for appellant.

The issue presented to the jury for its determination was whether or not the embankment obstructed a natural stream of water.

There were no allegations in the declaration warranting a recovery of damages caused by the obstruction of mere surface water for the plaintiff did not aver that the defendant, instead of putting up an embankment, could have employed another method of constructing its line equally safe, convenient and inexpensive, by which the damage could have been avoided, nor did he on the trial offer any evidence to that effect.

The rule of the common law that surface water is a common enemy which each land owner may fight according to his own necessities without regard to his neighbors, has only been modified to the extent that he shall do no unnecessary injury to others, as it is incumbent upon one claiming damage from surface water obstructed by an adjoining proprietor to aver and prove such absence of necessity as exempts the case from the common law rule, or to put it in judicial phrase, that another method of accomplishing the same result without such damage equally safe, convenient and inexpensive, was open to the adjoining proprietor. Sinai v. Railroad Co., 71 Miss. 547, 14 So. 87; Yazoo, etc., R. Co. v. Davis, 73 Miss 678, 19 So. 487.

In the Sinai case, which was decided on the pleadings the demurrer of the defendant railroad company to the plaintiff's declaration was overruled on the express ground that the declaration alleged that another method as cheap, safe and convenient, could have been employed in the construction of the line. Sinai v. Railroad Co., 71 Miss. 554, 14 So. 87.

The Davis case went to trial on the merits, and a judgment in favor of the plaintiff was reversed, the court holding that it was essential to prove among other things that a trestle would be as safe and economical as an embankment, in order to fix liability for obstruction of water caused by the latter.

In both of these cases there was no obstruction of natural stream, the damage arising entirely from overflow and surface waters on low lands.

It is too obvious for argument that no natural stream was obstructed in the present case. The testimony on both sides makes this perfectly apparent. The whole country at the point in question was very low and like that involved in the Sinai and Davis cases had always been subject to inundation after heavy rains from overflow and surface water except at a few places somewhat elevated above the general level. What the plaintiff's witnesses refer to as "bays" are simply slight depressions in the land and not natural streams of water. The testimony in its entirety, indeed the testimony of each witness on the subject, in its entirety, makes this absolutely clear. In wet weather these depressions are to some extent under water, but they are not natural streams. In Webster's International Dictionary, among the several definitions of the word "bay" we find the following: "A tract covered with trees (local U. S.)," and this is the only definition having any possible relation to the sense in which the term was employed on the trial of this case. As is well known the bay tree flourishes in such depressions of low lying lands as mentioned by the witness for the plaintiff as bays. The word as used by the witnesses has much the same meaning as the Word "slash" which is defined as follows in the same work: "swampy or wet lands overgrown with brushes. (Local U. S.)" What was meant was the slight depression denominated as a "swale," defined in the work mentioned as "A valley or low place; a tract low and usually wet land; a moor, a fen."

The witnesses for plaintiff speak of these depressions as "bays," "open bays," "branches," and "open bay branches," but all the terms mean the same thing. The plaintiff's son, a young man twenty-one years of age, explains what is meant by "open bay branches," the term used in the declaration. He says the term means a large, low, flat body of land about half a mile wide between his father's place and a certain ridge which become inundated as it in fact did before the railroad was built. The plaintiff's father speaks of the land lying towards the railroad as "bay flat country." The plaintiff, when asked what he meant by a bay answered simply that it is a bay, but distinguished it from a creek. The plaintiff's son, an adult, admitted on cross-examination that the "open bay branches" were mere depressions in a low, flat tract, and that his father's land did not drain towards the place where they crossed the line of the railroad. It was shown fully for the defendant that there axe no natural streams at the location in question.

It seems idle to cite authority on a mere common sense proposition, but that these depressions are water courses in the sense contended for by plaintiff in the court below, has been negatived by the courts.

When on the supreme bench of Kansas, Judge Brewer delivered an opinion that leaves nothing to be said on the subject. He said: "For a water course there must be a channel, a bed to the stream, and not merely low land or a depression in the prairie over which water flows. It matters not what the width or depth may be, a water course implies a distinct channel, or way out and kept open by running water, a passage whose appearance, different from that of the adjacent lands, discloses to every eye, on a mere casual glance, the bed of a constant or frequent streams." Gibbs v. Williams, 25 Kan. 220, 37 Am. Rep. 241.

That a definite channel, having a bed and sides or banks is an essential of a water-course, is well settled, as shown by the numerous authorities cited by Judge Brewer.

The whole country in the locality was subject to inundation and these depressions were doubtless the last to become free of water and may have served, in some measure, at certain points, to carry off the overflow and surface water, but that did not make them natural streams. The witnesses for plaintiff seemed to labor under the erroneous idea that because they were natural depressions in the land below the ground level they were natural streams. If their idea were correct, what an immense part of the Yazoo and Mississippi delta would be natural streams, and yet in the Sinai and Davis cases the court was considering controversies from the delta and the words "natural streams" had there a meaning as well defined as they could have had in cases relating to areas having any kind of topography.

The plaintiff having proved no obstruction of a natural stream of water and wholly failed to prove that the damage from surface water could have been avoided by another method of construction than the embankment equally safe, convenient and inexpensive the defendant could have remained passive in confident assurance of a favorable verdict but, although it was not necessary for it to do so, it took the affirmative and showed that as between the embankment and a trestle, the former was the safer, more convenient and less expensive method of constructing its line.

The appellee says that the court cannot reverse the judgment herein without overruling the case of Railroad Co. v. Miller, 68 Miss. 760, 10 So. 61. We can not assent to this proposition for the reason that in the Miller case the railroad company did not merely construct its road across the line of flowage of the water but cut a ditch that extended a half mile along the line of the road into which all the water was gathered and from which it was discharged at the end of the ditch on the plaintiff's land. Ib. p. 763. We have never doubted for a moment that one who, by an artificial arrangement gathers surface water into a narrow compass and discharges it with the increased force attending such treatment upon the land of another is liable in damages, and this is all that the Miller case decides. If that case held what the appellee seems to think it held, it has already been overruled by the Sinai case and the Davis case, supra.

The cases of Railroad Company v. Mason., 51 Miss. 245, and Railroad Co. v. Archibald, 67 Miss. 28, 7 So. 212, involved streams or natural water-courses and are in perfect harmony with our contention, and the case of Railroad Co. v. Smith, 72 Miss. 677, 17 So. 78, also cited by appellee, strongly supports the very doctrine upon which we rely.

The error of the court below in refusing the instruction asked by defendant predicated of exemption from liability if the openings were sufficient to carry off the water of all ordinary overflows, cannot be excused by the fact that it repeated the error condemned in the Davis case by forcing upon defendant an instruction charging that only the capacity to carry off unprecedented overflows could give such exemption from liability. The modified instruction condemned in the Davis case as insufficiently guarding the rights of the defendant in that case was not asked in this case until the defendant found that it could not get the instruction to which it was entitled.

Harrison & Gex and H. P. Heidelberg, for appellee.

The appellant railroad company recognized the places in question on their railroad, where culverts were originally constructed and through which open bay branches flowed, as natural streams, water-courses.

This conclusion...