O'connell v. East Tenn.

• Decision Date: 27 May 1891
• Citation: 87 Ga. 246,13 S.E. 489
• Parties: O'Connell v. East Tennessee v. & G. Ry. Co.
• Court: Georgia Supreme Court

13 S.E. 489

87 Ga. 246

O'Connell

v.East Tennessee

v.& G. Ry. Co.

Supreme Court of Georgia.

May 27, 1891.

Water-Courses — Obstructions — Action for Damages.

When a railway company erects an embankment for its track along the margin of a river, the accumulated waters of which, in times of flood, had previously escaped on that side, it being lower than the other, but which thereafter, and because of the embankment, overflowed the opposite side more than it had done before, and thus injured land there situate, the owner has a right of action against the company; or if, by the erection of such embankment, the river was deflected from its natural course, or deposits were maAe therein so as to raise its bottom, and from either of these causes such land was injured by the river when swollen, a recovery may be had for the damages thereby occasioned.

(Syllabus by the Court.)

Error from superior court, Bibb county; A. L. Miller, Judge.

Gustin, Guerry & Hall, for plaintiff in error.

Bacon & Rutherford, lor defendant in error.

Lumpkin, J. The precise question in this case is whether the owner of land on the bank of a river can without liability erect on his own land an embankment which increases the overflow in times of flood upon the lands of the opposite proprietor, to the injury thereof; or is there any duty for each owner to receive upon his land the share allotted it by nature of the flood-waters of the river. It is contended by defendant's counsel that the overflow from a river in time of flood or freshet is surface water, against which, by the common law, a man may protect himself without regard to the consequences to his neighbor. Many cases cited by him make a distinction between the common law and the civil law as to surface water; the former allowing the land-owner to dispose of it in any way, the latter restraining him from so using it as to injure his neighbor's tenement. There is authority to show that there is no difference between the common and the civil law in this respect, but that the common follows the civil law. Gillham v. Railroad Co.. 49 111. 484; Gormley v. San-ford, 52 III. 158; and the able opinion in Boyd v. Conklin, 54 Mich. 583, 20 N. W. Rep. 595. There is much conflict in the American cases, (Washb. Easem. p. 485, *353, et seq.,) the majority of the states seeming to follow the so-called "civil law rule." Thus it is material to consider whether the overflow, as above stated, is properly classed with surface water. This depends upon the configuration of the country, and the relative position of the water after it has gone beyond the usual channel. If the flood-water becomes severed from the main current, or leaves the stream, never to return, and spreads out over the lower ground, it has become surface water; but if it forms a continuous body with the water flowing in the ordinary channel, or if it departs from such channel animo revertendi, presently to return, us by the recession of the waters, it is to be regarded as still a part of the river. The identity of a river does not depend upon the volume of water which may happen to flow down its course at any particular season. The authorities hold that a stream may be wholly dry at times without losing the character of a water-course. So, on the other hand, it may have a "flood channel, " to retain the surplus waters until they can be discharged by the natural flow. The low places on a river act as natural safety-valves in times of freshet; and the defendant claims the right to stop up one of these without liability for ensuing damage.

The English cases on the question are not numerous, though from the decisions and dicta of the judges the law appears to be well understood and settled. In Rex v. Commissioners, etc., of Pagham, 8 Barn. & C. 355, it was held that an owner of land on the seashore could erect works to protect his land from encroachments by the sea, without liability for damage inflicted on his neighbor. The sea was called a "common enemy, " against which each might fortify at will. It appeared in Rex v. Trafford, 1 Barn. & Adol. 874, that a canal had been built by authority of parliament, and carried across a river and the adjoining valley by means of an aqueduct and an embankment containing several arches. A brook fell into the river above its point of intersection with the canal. In times of flood the water, which was then penned back into the brook, overflowed its banks, and was carried, by the natural level of the country, through the arches into the river, doing much mischief to the lands over which it passed. The aqueduct was sufficiently wide for the passage of the river at all times but those of high flood. The occupiers of the injured lands adjoining the river and brook, for the protection thereof, erected banks, (called "fenders, '") so as to prevent the flood-water from escaping; consequently the water, in time of flood, came down in so large a body against the aqueduct and canal as to endanger them, and obstruct the navigation. The fenders were not unnecessarily high, and without them many hundred acres of land would be exposed to inundation. It was held that the defendants were not justified, under these circumstances, in altering for their own benefit the course in which the flood-water had been accustomed to run; that there was no difference in this respect between floodwater and an ordinary stream; that an action would have lain at the suit of an individual; and, consequently, that an indictment lay where the act affected the public.

The conviction was accordingly sustained. The doctrine of Rex v. Commissioners, etc., of Pagham, supra, was sought to be extended to this case, but Tenterden, C. J., who had rendered the decision in that case, said: "It has long been established that the ordinary course of water cannot be law fully changed or obstructed for the benefit of one class of persons, to the injury of another. Unless, therefore, a sound distinction can be made between the ordinary course of water flowing in a bounded channel at all usual seasons, and the extraordinary course which its superabundant quantity has been accustomed to take at particular seasons, the creation and continuance of these fenders cannot be justified. No case was cited or has been found that will support such a distinction. The Pagham Case * * * is of a very different kind. * * * In the one case the water is prevented from coming where, within time of memory at least, it never had come; in the other it is prevented from passing in the way in which, when the occasion happened. it had been always accustomed to pass." This seems to be an authoritative enunciation of the common law. Menzies v. Breadalbane, 3 Bligh, (N. S.) 414, is directly in point, but was determined by the law of Scotland. Yet the lord chancellor said: "It is clear beyond the possibility of a doubt that by the law of England such an operation could not be carried on. The old course of the flood stream being along certain lands, it is not competent for the proprietors of those lands to obstruct that old course by a sort of new water-way, to then pejudice of the proprietor on the other side." In Attorney General v. Earl of Lonsdale, L. R.7 Eq. 387, 20 Law T. 64, it was attempted to extend the sea doctrine to the case of a tidal river, but Vice-Chancellor Malinb refused to so extend it on the authority of Menzies v. Breadalbane, supra, saying that Lord Eldon put that case upon the general law of England. In Mason v. Railway Co., L. R. 6 Q. B. 581, we find a dictum by Blackbtrn, J., as follows: "Before the canal was made, the person whose estate the plaintiff now has, had the ordinary rights and liabilities of a riparian owner on the banks of a natural stream. He was entitled to have the water flow to him in its natural state, so far as that was a benefit, —as, for instance, to turn his mill, or water his cattle; and he was bound to submit to receive the water, so far as it was a nuisance, as by its tendency to flood his lands." Lawrence v. Railroad Co., 4 Eng. Law & Eq. 265, 16 Q. B. 643, is considerably in point. A railway was constructed across certain low lands adjoining a river, over which the flood-waters used to spread themselves. These low lands were separated from the plaintiff's lands by a bank, constructed under certain drainage acts, which protected the plaintiff's lands from floods. By the construction of the railway the flood-waters could not spread themselves as formerly, but were penned up and flowed over the bank upon the plaintiff's lands. It was held that an action would lie against the company for the injury. Patteson, J., said: "Prima facie this would give the plaintiff a cause of action, and the question is whether the company are protected by their act;" a question which cannot arise in our law. In connection with the cases of Rex v. Trafford and Lawrence v. Railway Co., supra, it must be borne in mind that the first obstruction of the flood-waters there mentioned is, in England, justified by the statute authorizing it, and therefore stands on much the same footing as a natural obstruction; but the liability of the other party, who erected the second obstruction without statute authority, springs from tbe common law. No English authority has been found to controvert these principles, but the text-writers recognize them as settled law. Woolr. Waters, 213, (78 Law Lib. 212;) Crabb, Real Prop. 420, (54 Law Lib. 263;) Michael & W. Gas. & Water, (London Ed. 1884,) pp.213, 214, 666; Aug. Water-Courses, §§ 333, 334; Gould, Waters, §§ 160, 209.

In grouping the American cases, those tending to sustain the contention of the defendant in error will first be stated. Taylor v. Fickas, 64 Ind. 167, was much relied upon. There the injury was caused by the obstruction of the passage of driftwood, both owners being on the same side of the river, and the lower owner having planted a row of trees along the dividing line. The opinion, it is true, treats overflow in flood...