Central of Georgia Ry. Co. v. Windham

• Decision Date: 08 May 1900
• Citation: 126 Ala. 552,28 So. 392
• Parties: CENTRAL OF GEORGIA RY. CO. v. WINDHAM.
• Court: Alabama Supreme Court

28 So. 392

126 Ala. 552

CENTRAL OF GEORGIA RY. CO. v. WINDHAM.

Supreme Court of Alabama

May 8, 1900

Appeal from circuit court, Dale county; A. A. Evans, Judge.

Action by W. P. Windham against the Central of Georgia Railway Company. From a judgment for plaintiff, defendant appeals. Affirmed.

This was an action brought by the appellee, W. P. Windham, against the Central of Georgia Railway Company. The complaint contained several counts, in which it was alleged that by reason of the construction by the defendant of its roadway and depot in the town of Ozark, Ala., and the digging of ditches and culverts, and excavations necessary thereto, the surface or rain water is made to flow over the premises of the plaintiff, causing injuries thereto; that at the time of such overflow the plaintiff had a dwelling house located on his lands, which lay close to the road of the defendant, and that he was cultivating a crop of vegetables and other crops upon said premises; that, by reason of the construction of the roadbed and its depot by the defendant, the waters that were thrown back upon the premises of the plaintiff washed his lands, materially affecting their fertility, and in other places caused a deposit of sand upon said lands, destroying his crop of vegetables; that the water standing under his house had made the timbers underneath his house begin to rot that by reason of the overflow of said lands, which was caused by the construction of the road by the defendant, the health of his family had been made bad; and that, on account of sickness resulting therefrom, he had lost the benefit of the services of his children, and had been required to pay out large amounts for medical attention and nursing of his children. The defendant pleaded the general issue. On the trial of the cause the plaintiff introduced evidence tending to show that prior to 1898, and up to and during the year 1897, he owned a tract of land in the city of Ozark, Ala and that he and his family had continuously resided on said lot for 30 years just preceding 1898; that on said lot he had a dwelling house, containing seven rooms, in which he and his family resided during that time, and that he had thereon a smoke house, a barn, and necessary fencing, and he had a garden and orchard; that up to the year 1888 there were a low place and some gullies just south of his lot and dwelling house, in which the rain water that came from the southeast and northeast of his dwelling emptied, and that his yard and garden and orchard never overflowed from surface water prior to 1888; that prior to 1888 the health of his family was good; that in the year 1888 the defendant constructed a railroad into the city of Ozark, along one of the public streets of said city, and built a depot and depot yard in said city; that said depot, depot yard, and the tracks of said railroad were built in the place where the gullies were situated, just south of the plaintiff's residence, and that in building said depot and depot yard, and in the construction of its track, the defendant filled up said low place where the surface or rain water had been accustomed to flow; that, as the result of such low place being filled up the rain water was caused to flow on said premises, which it had never been accustomed to do theretofore; that said railroad in building its track had also made excavations and dug ditches and culverts to the north and east of said plaintiff's premises, and that on account of said excavations, ditches, and culverts the rain water was caused to pour upon and overflow plaintiff's premises; that before the excavations, ditches, and culverts were made, the water flowed in an opposite direction; that, by reason of the facts as stated above, plaintiff's premises were overflowed on three occasions, as mentioned in its complaint in the year 1897, to wit, in the months of February or March and in April and July; that during said overflows the water came upon and overflowed plaintiff's yard, and ran under his dwelling house and over his orchard and garden; that said overflow washed away the top soil from the orchard and garden, and damaged his vegetables and the other crops growing on said lands; that said water so overflowed upon his premises stood under his dwelling for two or three weeks, and that by reason of the dampness caused thereby his family became sick, and it was necessary for the plaintiff to spend large sums for the purchase of medicine and in the payment of doctor's bills; that said overflow was causing his lands to depreciate in value, materially affecting their fertility and caused him to lose the labor of his children while they were sick and unable to work.

The defendant's evidence tended to show that, in building its track and depot and depot yards in the city of Ozark, it acted by and under the corporate authorities of said city that its depot, tracks, excavations, ditches, and culverts were constructed in a first-class way, and in the manner usual on all first-class railroads; that the sewers and culverts in its depot grounds, yards, and under its track were sufficient, in ordinary rains, to carry off, and had carried off, all the water from rains which usually fall; that in the latter part of February or the first of March and in April and July, 1897.the time mentioned in the plaintiff's complaint and referred to in his testimony, there were very excessive and unusual rains in and near the city of Ozark; that said rains overflowed the ditches and culverts in said city, and overflowed the sidewalks of said city; that, on account of said excessive and unusual rains, the rain water broke over and overflowed the ditches and culverts on the streets south and east of the defendant's tracks and depot grounds, and then overflowed the defendant's ditches, culverts, and embankments along its track, and then reached the plaintiff's lands; that plaintiff's residence and lands were lower than the lands just east of them,-lower than the defendant's tracks and embankments,-and that said water from the streets and culverts and ditches in the city of Ozark greatly increased the flow of water on defendant's premises and caused the overflow of plaintiff's premises; that the culverts and ditches provided by the defendant along its tracks and depot grounds had never overflowed before said excessive and unusual rains, but had always been sufficient to carry off the rain water that came upon the defendant's property; that plaintiff took no steps and had nothing done to prevent the said rain water from coming into his yard and under his house, and did nothing to get it off his premises and from under his house, but allowed the water to flow thereon and to remain standing.

The plaintiff, while being examined as a witness in his own behalf, was asked the following question: "Did any of the agents of the defendant know that you and your family lived on said lands prior to said overflow?" The defendant objected to this question upon the...