Davis v. Louisville & N.R. Co.

• Decision Date: 30 September 1922
• Citation: 244 S.W. 483,147 Tenn. 1
• Parties: DAVIS ET AL. v. LOUISVILLE & N. R. CO. DAVIS ET AL. v. PAYNE, AGENT, ETC.
• Court: Tennessee Supreme Court

244 S.W. 483

147 Tenn. 1

DAVIS ET AL. v. LOUISVILLE & N. R. CO.

DAVIS ET AL. v. PAYNE, AGENT, ETC.

Supreme Court of Tennessee.

September 30, 1922

Certiorari to Court of Civil Appeals.

Two actions by H. H. Davis and others against the Louisville & Nashville Railroad Company and against John Barton Payne Agent of the United States Government. Judgments for defendants were reversed by the Court of Civil Appeals, and defendants bring certiorari. Decree of the Court of Civil Appeals affirmed, and causes remanded.

Daniel & Savage, of Clarksville, for appellants.

Austin Peay, of Clarksville, for appellee.

L. D SMITH, Special Judge.

These causes are before us on petitions for certiorari filed on behalf of the defendants to have reviewed and reversed the judgment of the Court of Civil Appeals. In the circuit court the suits of the plaintiffs were dismissed, after the introduction of the evidence, upon motions made by the defendants for peremptory instructions. On appeal to the Court of Civil Appeals this action was held to be erroneous and the causes remanded for a new trial. The cause of action is the same in each case, viz., damages for the alleged destruction of the plaintiffs' crops by an overflow of water caused by the construction of an embankment with an insufficient culvert. The case against the Louisville & Nashville Railroad Company is for damages accruing to the plaintiffs in the years 1916 and 1917, and the case against the defendant Payne as Agent of the United States government is for damages alleged to have accrued in the year 1918. The same questions are presented in both cases, and therefore they may be properly disposed of in one opinion, having been heard together in the lower courts.

The plaintiffs are the owners as tenants in common of a tract of land of about 100 acres in Montgomery county, bounded on the north by the Cumberland river. The Louisville & Nashville Railroad was constructed through this land, dividing it into two fields of about equal size, the railroad paralleling the river. The land was low bottom land; water falling and flowing on it originally drained by natural flow toward the North to the Cumberland river through or by means of a natural channel. When the railroad was originally constructed it was placed over this natural drainage upon a trestle. Prior to the year 1896 this trestle was removed and an embankment constructed with a culvert therein. The land being low was subject to overflow from the Cumberland river, which backed the water through this culvert to the upper side of the embankment, and the culvert being insufficient in size to take care of the water which accumulated above and which was backed up by the Cumberland river gradually caused the land to fill up on both sides of the embankment, so that at the time the suits were brought the openings in the culvert on either side were below the level of the land itself.

That the plaintiffs' crops were damaged by the overflow of water is not a question of dispute here, and the questions presented in the record arise upon the plea of the defendants to the effect that the embankment on its right of way through the lands adjoining plaintiffs' land, and the culvert which runs through this embankment, had been constructed and maintained continuously and without interruption for more than 20 years before the damages alleged occurred, and that it had acquired by prescription the right to maintain the embankment and culvert, and consequently the right to overflow the plaintiffs' land. Therefore the plaintiffs were not entitled to recover for any injuries occurring to their crops by reason thereof.

The fact is established beyond controversy that the railroad company, more than 20 years prior to the institution of these suits, had constructed this particular embankment and culvert, and they had been maintained for a period of more than 20 years in that condition, but it is not conclusively shown that the land was caused to overflow or to have inflicted thereon any positive injury prior to the year 1901, at which time the filling up of the land was first observed.

It necessarily follows from the proof in this case that the cause of the plaintiffs' injuries was created and placed upon this land more than 20 years before the accrual of the damages sought to be recovered here, and therefore, if the prescriptive period commenced to run at the date of the creation of the cause of the damage, then the cases were properly dismissed upon motion for peremptory instructions, but if said prescriptive right began to run from the date of the first actual injury to the property, then the motion was improperly sustained, since the proof does not conclusively show that the first injury was more than 20 years from the commencement of the accrual of the action. It is a well-established rule of law in this state that lands lying at a lower level are burdened with the servitude of receiving all waters which naturally flow down to them from lands adjoining and upon a higher level, and this rule of law has been applied not only to living streams but to surface water, and thereunder it is the duty of a railway company in the construction and maintenance of its railroad to provide sufficient means for the safe passage of accumulated surface water, and this is not limited merely to the volume of water caused to flow from ordinary rain fall but such as had occurred within past experience and observation, or such as might reasonably be anticipated from the physical surroundings and climatic conditions. But this right is one which may be lost by the maintenance of artificial embankments upon the lands of the servient estate for a period of time sufficient to presume a grant, that period of time being under all of our cases 20 years, and the servient estate may acquire a counter easement to flow back water upon the lands of the dominant estate by the erection and maintenance of an embankment impeding the natural drainage from the lower lands and back such surface water upon the higher lands. Railway v. Mossman, 90 Tenn. 157, 16 S.W. 64, 25 Am. St. Rep. 670.

This prescriptive right upon the part of the owner of the lower land to back the flow of water on the upper land, being founded upon the supposition of a grant, must necessarily be exercised or made use of in such a way as to indicate that it is claimed as a right. In other words, a right of action must accrue from the act performed by the owner of the lower land in favor of the upper landowner, and no prescription can begin to run until a cause of action arises, and it does begin to run when such cause of action arises.

"If the enjoyment is consistent with the right of the owner of the tenement, it confers no right in opposition to such ownership. Adverse user is defined as such use of the property as the owner himself would exercise, disregarding the claims of others entirely, asking permission from no one, and using the property under a claim of right. It is essential that there be such an invasion of the rights of the party against whom the right is claimed that he would have a cause of action against the intruder, and the prescriptive period does not commence to run until there is such an invasion." 9 R. C. L., 777.

The argument made here by the railroad company is that the right of the upper landowner as against the owner of the lower land is merely that the flow of water may not be impeded, and that, inasmuch as the construction of the embankment with an insufficient culvert operated to impede the flow of water, a cause of action immediately arose, and this condition having continued for a period of more than 20 years, the right of the upper landowner has been lost by prescription. This argument is only partially sound. It overlooks the real right of the dominant estate. While his right may be expressed as being one entitling him to allow the water to flow over his land in the natural way, the real right is that his land be not injured by interference with this flow of water. In this case the railroad company had the right to build its embankment without any culvert or with an inadequate culvert and to use its land in such way as it saw proper, so that it did not thereby cause injury to the adjacent owner. The adjacent owner could not complain, and he had no cause of action until some actual injury resulted to him from the use made by the railroad company of its own property.

It is undoubtedly a sound rule of law, and it is in accord with a majority of the cases on that point, that whenever an embankment is of a permanent character, and its construction and maintenance are necessarily an injury, a cause of action at once arises. If no culvert had been constructed in this embankment, all water falling upon this land would necessarily fail to flow and be impeded, and since we know that water does fall and flow and necessarily create an injury, it might well be said that a cause of action arises immediately upon such condition being created. The Mossman Case, supra, is authority for this conclusion....