Cresson v. Louisville & N. R. Co.
| Decision Date | 06 March 1933 |
| Docket Number | 30446 |
| Citation | 146 So. 462,166 Miss. 352 |
| Parties | CRESSON v. LOUISVILLE & N. R. CO |
| Court | Mississippi Supreme Court |
Suggestion Of Error Overruled April 17, 1933.
APPEAL from circuit court of Hancock county HON. W. A. WHITE, Judge.
Suit by Charles L. Cresson, Jr., against the Louisville & Nashville Railroad Company. Judgment for defendant, and plaintiff appeals. Judgment reversed and cause remanded.
Reversed and remanded.
W. W. Stockstill and Robt. L. Genin, both of Bay St. Louis, for appellant.
After considerable research we have been unable to find a single case holding that the rule regarding proof of title necessary to support the action where the trespass is committed by casting something under the control of the defendant on the land of the plaintiff, is any different from that in a case of trespass "qu are clausum fregit." Furthermore, no sound reason can be assigned for making such a distinction.
The right of action to recover the statutory penalty for cutting and boxing timber is fixed by the statute in the owner of the trees, and that as held in several cases in this state, it is always competent for the defendant in such cases to show an outstanding title in a third party; but this is an affirmative defense and the defendant has the burden of proving same. When this burden is not met the plaintiff is, of course, entitled to recover on proof of possession and claim of ownership.
Ware v. Collins, 35 Miss. 231; Carpenter v. Savage, 93 Miss. 233, 46 So. 537; Ingram-Day Lumber Company v. Cuevas, 104 Miss. 32, 61 So. 4.
It is a general rule, which is supported by decisions from nearly every jurisdiction, that, as against a mere tortfeasor, mere actual possession of land is alone sufficient to maintain trespass.
It is the general rule in this state, so far as we have been able to find, that possession under color of title and claim of ownership is alone sufficient to support the action.
Ingram-Day Lumber Company v. Cuevas, 104 Miss. 32; Indian Springs Public School v. Carter, 123 Miss. 457, 86 So. 289; Houston Brothers v. Lenhart, 136 Miss. 841, 101 So. 289; Williams v. Collins, 114 Miss. 882, 75 So. 689; Darrill v. Dodds, 78 Miss. 912, 30 So. 4.
The defendant is not permitted to set up as a defense that a third person has a right to the property superior to that of the plaintiff, when such defendant is not in privity of title with such third person.
26 R. C. L., page 955, pars. 32 and 33; 38 Cyc., pages 1004, 1015; Beauford Land, etc. Company v. New River Lumber Company, 86 S.C. 358, 68 S.E. 637; Hillhouse v. Jennings, 60 S.C. 392; 40 Cyc. 686; Southern Railroad Company v. Leard, 39 So. 449; Long v. Louisville & Nashville Railroad Company, 16. Ann. Cas. 673; Louisville & Nashville Railroad Company v. Higginbotham, 44 So. 872; Houston v. Mississippi Boom Company, 79 N.W. 92; McKee v. Delaware, etc. Canal Company, 26 N.E. 305; Thoule v. Marvin Planing Mill Company, 148 S.W. 413; Field v. Appel River Log Driving Company, 31 N.W. 17; Falkner v. City of Rome, 67 S.E. 540; Clark v. Wiles, 20 N.W. 63.
It is a well recognized rule of law that rights acquired by prescription are measured by the extent of the user during the prescriptive period, and cannot be enlarged or varied beyond the conditions under which it was exercised during such period.
27 R. C. L. 1207, par. 208; 40 Cyc. 649.
Rights acquired by prescription cannot be varied or enlarged beyond the conditions existing during the prescription period.
Mississippi Mills v. Smith, 69 Miss. 299, 11 So. 26; Sturges v. City of Meridian, 95 Miss. 35, 48 So. 620; Harvey v. Illinois Central Railroad Company, 111 Miss. 835, 72 So. 273; Pompey Lake Drainage District v. McKinney Lake Drainage District, 99 So. 387; Easements, 9 R. C. L., page 788, par. 46.
The only other question presented by the record is whether or not the testimony made a case for the jury on the plaintiff's theory that the flooding of his land and the damages incident thereto was caused by a greatly increased and more concentrated flow of water from defendant's sand pit, and not by unprecedented rainfalls, as alleged in the motion for a directed verdict. We believe that a correct answer to this question must be in the affirmative.
Everything must be considered as proved which the evidence established either directly or by reasonable inference, against the party who requests a peremptory instruction.
Dean v. Brannon, 139 Miss. 312, 104 So. 173; Jefferson Standard Life Insurance Company v. Jeffcoats, 143 So. 842.
E. J. Gex, of Bay St. Louis, and Smith Johnston, of Mobile, Alabama, for appellee.
There is no positive proof to show that anything done by the defendant caused the damage complained of in the declaration. There must be something in the evidence from which a jury can definitely determine that the defendant proximately caused the damage to the plaintiff's property.
New York Central R. Co. v. Ambrose, 280 U.S. 486; Atchison, Topeka & Sante Fe v. Toops, 281 U.S. 351; Atchison, Topeka & Sante Fe v. Saxon, 76 L.Ed. 311.
The drainage through the plaintiff's property was a natural drain into which the defendant had a right to cause the surface waters from its property to be emptied.
Board of Drainage Commissioners of District No. 10 v. Board of Drainage Commissioners of Washington County, 95 So. 75; Drainage District v. Lawrence, 83 N.E. 104; Sykes v. Sykes, 147 S.E. 621; Markle v. Grothe et al., 156 A. 585; Bures v. Stephens, 241 N.W. 543; Drainage District v. McFaddin, 291 S.W. 322; Mishler v. Peterson, 166 N.W. 640; Perry v. Clark, 132 N.W. 358; Peck v. Peterson, 115 P. 327; Parizek v. Hinek, 123 N.W. 180; Kearns v. Town of Bloomfield, 138 A. 386.
Defendant had a right by prescription to drain its surface waters through the plaintiff's property.
Crumbaugh v. Mobile & Ohio Railroad Company, 62 So. 233.
Argued orally by W. W. Stockstill and Robert L. Genin, for appellant, and by E. J. Gex, for appellee.
The appellant instituted this suit in the circuit court of Hancock county, against the Louisville & Nashville Railroad Company, seeking to recover damages which the appellee was alleged to have caused to lands of the appellant by collecting and casting thereon a large and excessive volume of water from its own property. At the conclusion of the evidence, the court peremptorily instructed the jury to return a verdict in favor of the appellee; and from the judgment entered in pursuance of this instruction, this appeal was prosecuted.
The evidence offered at the trial of the cause tended to prove the following facts: At the time of the alleged injury, and some time prior thereto, the appellant was in possession under color of title, claiming to be the owner of a certain lot of land located at the intersection of the right of way of the appellee railroad company and a street, known as Nicholson avenue, in the town of Waveland, Mississippi. Running along the western border and across the southwest corner, of appellant's land, is a flat ravine, or natural drain, which crosses the said avenue, but practically all of appellant's land lies between this ravine and the said right of way. For many years prior to the injuries complained of, the appellee maintained a drainage ditch, about three feet wide and two feet deep, along this right of way. This ditch enters the appellant's property near the northeast corner thereof and runs diagonally across the same, intersecting the said ravine at or near the north line of Nicholson avenue. Many years ago the appellee made a large excavation about...
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